2744 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Chapter II 

[Docket Number: COE–2020–0002] 

RIN 0710–AA84 

Reissuance and Modification of 

Nationwide Permits 

AGENCY: Army Corps of Engineers, DoD. 

ACTION: Final rule. 

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 NWPs help protect the 

aquatic environment and the public 

interest by providing incentives to 

reduce impacts on jurisdictional waters 

and wetlands while effectively 

authorizing activities that have no more 

than minimal individual and 

cumulative adverse environmental 

effects. In this final rule, the Corps is 

reissuing and modifying 12 existing 

NWPs and issuing four new NWPs. For 

these 16 NWPs, the Corps is also 

reissuing and modifying the NWP 

general conditions and definitions. The 

Corps is not reissuing or modifying the 

remaining 40 existing NWPs or 

finalizing proposed new NWP E at this 

time. Those 40 remaining NWPs 

continue to be in effect under the 

January 6, 2017, final rule and the 

existing general conditions and 

definitions in the 2017 final rule 

continue to apply to those permits. 

DATES: These 16 NWPs, the 32 general 

conditions, and the associated 

definitions will go into effect on March 

15, 2021. 

ADDRESSES: U.S. Army Corps of 

Engineers, Attn: CECW–CO–R, 441 G 

Street NW, Washington, DC 20314– 

1000. 

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/CivilWorks/Regulatory-Program-andPermits/. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. General 

B. Overview of Proposed Rule 

C. Overview of This Final Rule 

D. Status of Existing Permits 

E. Nationwide Permit Verifications 

F. Executive Order 13783, Promoting 

Energy Independence and Economic 

Growth 

G. Executive Order 13777, Enforcing the 

Regulatory Reform Agenda 

H. Executive Order 13921, Promoting 

American Seafood Competitiveness and 

Economic Growth 

I. 2018 Legislative Outline for Rebuilding 

Infrastructure in America 

II. Discussion of Public Comments 

A. Overview 

B. Responses to General Comments 

C. Comments on Proposed Actions Under 

Executive Order 13921, Promoting 

American Seafood Competitiveness and 

Economic Growth 

D. Comments on the 2018 Legislative 

Outline for Rebuilding Infrastructure in 

America 

E. Comments on Regional Conditioning of 

Nationwide Permits 

F. Comments on Proposed Removal of the 

300 Linear Foot Limit for Losses of 

Stream Bed 

G. Response to Comments on Specific 

Nationwide Permits 

H. Responses to Comments on the 

Nationwide Permit General Conditions 

I. Discussion of Proposed Modifications to 

Section D, District Engineer’s Decision 

J. 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 MagnusonStevens Fishery Conservation and 

Management Act 

F. Compliance With Section 106 of the 

National Historic Preservation Act 

G. 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 

BMP Best Management Practice 

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 Nationwide Permits Included in 

This Rule and General Conditions 

Nationwide Permits (NWPs) 

12. Oil or Natural Gas Pipeline Activities 

21. Surface Coal Mining Activities 

29. Residential Developments 

39. Commercial and Institutional 

Developments 

40. Agricultural Activities 

42. Recreational Facilities 

43. Stormwater Management Facilities 

44. Mining Activities 

48. Commercial Shellfish Mariculture 

Activities 

50. Underground Coal Mining Activities 

51. Land-Based Renewable Energy 

Generation Facilities 

52. Water-Based Renewable Energy 

Generation Pilot Projects 

55. Seaweed Mariculture Activities 

56. Finfish Mariculture Activities 

57. Electric Utility Line and 

Telecommunications Activities 

58. Utility Line Activities for Water and 

Other Substances 

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, where those activities will 

result in no more than minimal 

individual and cumulative adverse 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2745 

environmental effects. NWPs 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, for 

the purpose of streamlining 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, 

where those activities would 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)). 

NWPs 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. 

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 decisionmaking 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 for activities conducted by nonFederal 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 deemed authorized 

by the NWP (see 33 CFR 330.1(e)(1)). 

In fiscal year 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 to reduce 

the adverse effects of their planned 

activities that would otherwise require 

an individual permit under Section 404 

of the Clean Water Act and/or Section 

10 of the Rivers and Harbors Act of 

1899, in order to qualify for NWP 

authorization. This reduction in adverse 

effects can therefore reduce a project’s 

impact on the Nation’s aquatic 

resources. 

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, 

after public notice and comment, to 

modify, suspend, or revoke NWP 

authorizations on a regional basis to 

take into account regional differences 

among aquatic resources and to 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 II.G for more information on 

regional conditions for the NWPs. 

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, publicly-available 

decision document. This document 

discusses the district engineer’s findings 

as to whether a proposed NWP activity 

qualifies for NWP authorization, 

including compliance with all 

applicable terms and conditions, and 

the rationale for any waivers granted, 

and activity-specific conditions needed 

to ensure that the activity being 

authorized by the NWP will have no 

more than minimal individual and 

cumulative adverse environmental 

effects and will not be contrary to the 

public interest (see § 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/or use of best 

management practices and/or 

compensatory mitigation requirements 

to offset authorized losses of 

jurisdictional waters and wetlands so 

that the net adverse environmental 

effects caused by the authorized activity 

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 the 

adverse environmental effects will be 

more than minimal, or otherwise 

determines that ‘‘sufficient concerns for 

the environment or any other factor of 

2746 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

1This document is available at: https://

usace.contentdm.oclc.org/digital/collection/ 

p16021coll11/id/2757/ (accessed 3/12/2020). 

the public interest so requires’’ 

consistent with 33 CFR 330.4(e)(2). 

During the review of PCNs, district 

engineers assess cumulative adverse 

environmental effects at an appropriate 

regional scale. 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. For 

purposes of the NWP program, 

cumulative effects are the result of the 

combined effects of activities authorized 

by NWPs during the period the NWPs 

are in effect. The cumulative effects are 

assessed against the current 

environmental setting to determine 

whether the cumulative adverse 

environmental effects are more than 

minimal. The district engineer uses his 

or her discretion to determine the 

appropriate regional scale for evaluating 

cumulative effects. 

For the NWPs, the appropriate 

regional scale for evaluating cumulative 

effects may be a waterbody, watershed, 

county, state, or a Corps district, as 

appropriate. 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 

jurisdictional 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. 

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. 

Further, the Corps’ public interest 

review regulations at 33 CFR 320.4(a)(1) 

require consideration of cumulative 

impacts for the issuance of DA permits. 

Since the required public interest 

review 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 activity to 

be authorized by an NWP, 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 application for an individual 

permit. 

There may be activities authorized by 

NWPs that cross more than one Corps 

district or more than 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. 

B. Overview of Proposed Rule 

On September 15, 2020, the Corps 

published in the Federal Register (85 

FR 57298) a proposed regulation to 

reissue with modification the existing 

NWPs and associated general conditions 

and definitions and to create five new 

NWPs (2020 Proposal). The Corps 

provided a 60-day public comment 

period which closed on November 16, 

2020. Among other things, the Corps 

proposed the following: (1) To create 

two new NWPs to authorize certain 

categories of mariculture activities (i.e., 

seaweed and finfish mariculture) that 

are not currently authorized by NWP 48; 

(2) to divide the NWP that authorizes 

utility line activities (NWP 12) into 

three separate NWPs that address the 

differences in how different utility line 

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; 

(3) a new NWP which would authorize 

discharges of dredged or fill material 

into jurisdictional waters for the 

construction, expansion, and 

maintenance of water reuse and 

reclamation facilities; and (4) to remove 

the 300 linear foot limit for losses of 

stream bed from 10 NWPs (NWPs 21, 

29, 39, 40, 42, 43, 44, 50, 51, and 52). 

The Corps requested comment on these 

and all other aspects of the proposal. 

C. Overview of This Final Rule 

This final rule replaces 12 of the 

existing NWPs that were published in 

the January 6, 2017, final rule (82 FR 

1860), specifically: NWP 12 (oil or 

natural gas pipeline activities; NWP 21 

(surface coal mining activities); NWP 29 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2747 

(residential developments); NWP 39 

(commercial and institutional 

developments); NWP 40 (agricultural 

activities); NWP 42 (recreational 

facilities); NWP 43 (stormwater 

management facilities); NWP 44 (mining 

activities); NWP 48 (commercial 

shellfish mariculture activities); NWP 

50 (underground coal mining activities); 

NWP 51 (land-based renewable energy 

generation facilities); and NWP 52 

(water-based renewable energy 

generation pilot projects). This final rule 

issues four new NWPs: NWP 55 

(seaweed mariculture activities); NWP 

56 (finfish mariculture activities); NWP 

57 (electric utility line and 

telecommunications activities); and 

NWP 58 (utility line activities for water 

and other substances). 

For the 16 NWPs included in this 

final rule, the Corps is also reissuing the 

general conditions and definitions, with 

some changes. The Corps is not 

reissuing or modifying the remaining 40 

NWPs included in the 2020 Proposal or 

taking any action on the proposed new 

NWP E at this time. The general 

conditions and definitions published in 

the January 6, 2017, final rule (82 FR 

1860) continue to apply to the 40 

existing 2017 NWPs that continue to 

remain in effect after the final rule for 

the 16 reissued and new NWPs goes into 

effect on March 15, 2021. 

The 16 permits being finalized in this 

rule include permits proposed partly in 

response to E.O. 13783, Promoting 

Energy Independence and Economic 

Growth, and E.O. 13921, Promoting 

American Seafood Competitiveness and 

Economic Growth. The Corps is also 

reissuing NWPs 12 and 48 partly to 

address issues raised in two federal 

district court decisions: United States 

District Court for the District of Montana 

Great Falls Division’s decision in 

Northern Plains Resource Council, et al., 

v. U.S. Army Corps of Engineers, et al., 

(Case No. CV 19–44–GF–BMM) and the 

United States District Court, Western 

District of Washington at Seattle’s 

decision in the Coalition to Protect 

Puget Sound Habitat v. U.S. Army Corps 

of Engineers et al. (Case No. C16– 

0950RSL) and Center for Food Safety v. 

U.S. Army Corps of Engineers et al. 

(Case No. C17–1209RSL). 

D. Status of Existing Permits 

When the Corps modifies existing 

NWPs, the modified NWPs replace the 

prior versions of those NWPs so that 

there are not two sets of NWPs in effect 

at the same time. Having two sets of 

NWPs in effect at the same time creates 

regulatory uncertainty if each set of 

those NWPs has different limits, 

requirements, and conditions because 

permittees may be unclear as to which 

limits, requirements, and conditions 

apply to their authorized activities. In 

addition, differences in NWP limits, 

requirements, and conditions between 

two sets of NWPs can create challenges 

for district engineers in terms of 

enforcement and compliance efforts. 

The Corps is modifying the expiration 

date for the 12 existing NWPs (i.e., 

NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 

50, 51, 52) that are issued in this final 

rule to March 15, 2021. The expiration 

date for the 12 existing NWPs and the 

4 new NWPs issued in this final rule is 

five years after the date those NWPs go 

into effect. 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 an 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 under 

any of the 12 NWPs issued in this final 

rule, 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. 

As long as the verified NWP activities 

continue to comply with the terms and 

conditions of the 12 existing NWPs 

issued in this final rule, those activities 

continue to be authorized by the 

applicable NWP(s) until March 18, 

2022, unless a 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 2017 NWPs, 

but no longer qualify for authorization 

under any of the 12 existing NWPs that 

are reissued in this final rule, continue 

to be authorized by the 2017 NWP(s) for 

12 months as long as those activities 

have commenced (i.e., are under 

construction) or are under contract to 

commence in reliance upon an NWP 

prior to the date on which the NWP 

expires. That authorization is contingent 

on the activity being 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. 

The 16 NWPs issued in this final rule 

go into effect on March 15, 2021. The 

2017 versions of the 12 NWPs reissued 

in this final rule expire on March 15, 

2021. The 12 existing NWPs and 4 new 

NWPs issued in this final rule expire 

five years after March 15, 2021. 

E. Nationwide Permit Verifications 

Certain NWPs require the permittee to 

submit a PCN, and thus request 

confirmation from the district engineer 

prior to commencing the proposed NWP 

activity, to ensure that the NWP activity 

complies with the terms and conditions 

of the NWP. The requirement to submit 

a PCN is identified in the NWP text, as 

well as certain general conditions. 

General condition 18 requires nonfederal permittees to submit PCNs for 

any proposed activity that might affect 

ESA-listed species or designated critical 

habitat, if listed species or designated 

critical habitat are in the vicinity of the 

proposed activity, or if the proposed 

activity is located in critical habitat. 

General condition 20 requires nonfederal permittees to submit PCNs for 

any proposed activity that may have the 

potential to cause effects to any historic 

properties listed in, determined to be 

eligible for listing in, or potentially 

eligible for listing in, the National 

Register of Historic Places. 

In the PCN, the project proponent 

must specify which NWP or NWPs he 

or she wants to use to provide the 

required Department of Army (DA) 

authorization under Section 404 of the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899. For 

voluntary NWP verification requests 

(where a PCN is not required), the 

request should also identify the NWP(s) 

the project proponent wants to use. The 

district engineer should verify the 

activity under the NWP(s) requested by 

the project proponent, as long as the 

proposed activity complies with all 

applicable terms and conditions, 

including any applicable regional 

conditions imposed by the division 

engineer. All NWPs have the same 

general requirements: That the 

authorized activities may only cause no 

2748 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

more than minimal individual and 

cumulative adverse environmental 

effects. Therefore, if the proposed 

activity complies with the terms and all 

applicable conditions of the NWP the 

applicant wants to use, then the district 

engineer should issue the NWP 

verification unless he or she exercises 

discretionary authority and requires an 

individual permit. If the proposed 

activity does not meet the terms and 

conditions of the NWP identified by the 

applicant in his or her PCN, and that 

activity meets the terms and conditions 

of another NWP identified by the 

district engineer, the district engineer 

will process the PCN under the NWP 

identified by the district engineer. If the 

district engineer exercises discretionary 

authority, he or she should explain to 

the applicant why the proposed activity 

is not authorized by an NWP. 

Pre-construction notification 

requirements may be added to NWPs by 

division engineers through regional 

conditions to require PCNs for 

additional activities. For an activity 

where a PCN is not required, a project 

proponent may submit a PCN 

voluntarily, if he or she wants written 

confirmation that the activity is 

authorized by an NWP. Some project 

proponents submit permit applications 

without specifying the type of 

authorization they are seeking. In such 

cases, the district engineer will review 

those applications and determine if the 

proposed activity qualifies for NWP 

authorization or another form of DA 

authorization, such as a regional general 

permit (see 33 CFR 330.1(f)). 

In response to a PCN or a voluntary 

NWP verification request, the district 

engineer reviews the information 

submitted by the prospective permittee. 

If the district engineer determines that 

the activity complies with the terms and 

conditions of the NWP, he or she will 

notify the permittee. Activity-specific 

conditions, such as compensatory 

mitigation requirements, may be added 

to an NWP authorization to ensure that 

the activity to be authorized under the 

NWP will result in no more than 

minimal individual and cumulative 

adverse environmental effects. The 

activity-specific conditions are 

incorporated into the NWP verification, 

along with the NWP text and the NWP 

general conditions. In general, NWP 

verification letters will expire on the 

date the NWP expires (see 33 CFR 

330.6(a)(3)(ii)), although district 

engineers have the authority to issue 

NWP verification letters that will expire 

before the NWP expires, if it is in the 

public interest to do so. 

If the district engineer reviews the 

PCN or voluntary NWP verification 

request and determines that the 

proposed activity does not comply with 

the terms and conditions of an NWP, he 

or she will notify the project proponent 

and provide instructions for applying 

for authorization under a regional 

general permit or an individual permit. 

District engineers will respond to NWP 

verification requests, submitted 

voluntarily or as required through PCNs, 

within 45 days of receiving a complete 

PCN. Except for NWP 49, and for 

proposed NWP activities that require 

Endangered Species Act section 7 

consultation and/or National Historic 

Preservation Act section 106 

consultation, if the project proponent 

has not received a reply from the Corps 

within 45 days, he or she may assume 

that the project is authorized, consistent 

with the information provided in the 

PCN. For NWP 49, and for proposed 

NWP activities that require ESA Section 

7 consultation and/or NHPA Section 

106 consultation, the project proponent 

may not begin work before receiving a 

written NWP verification. If the project 

proponent requested a waiver of a limit 

in an NWP, the waiver is not granted 

unless the district engineer makes a 

written determination that the proposed 

activity will result in no more than 

minimal individual and cumulative 

adverse environmental effects, and 

issues an NWP verification. 

F. Executive Order 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, 

Office of the Assistant Secretary of the 

Army (Civil Works) 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 Office of the Assistant Secretary 

of the Army (Civil Works) issued its 

report on October 25, 2017, and 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.’’ 

G. 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, nongovernmental 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. Comments received in response 

to the July 20, 2017, Federal Register 

notice can be viewed at 

www.regulations.gov in docket number 

COE–2017–0004. 

H. 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. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2749 

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 multispecies 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 ‘‘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. 

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 

proposed 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 invited public 

comment on whether a separate NWP 

should be issued to authorize structures 

or work regulated by the Corps for 

multi-species mariculture activities. 

As required by the Executive Order, 

the Corps proposed 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. 

Based on the reasons set out in the final 

rule, the Corps has decided to issue 

these two permits. These new NWPs 

authorize structures and work in 

navigable waters of the United States 

under Section 10 of the Rivers and 

Harbors Act of 1899. These new NWPs 

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 

NWPs includes a provision on multitrophic species mariculture activities in 

marine and coastal waters, including 

federal waters on the outer continental 

shelf. This 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 provision was 

an alternative to developing a separate 

NWP for multi-trophic species 

mariculture activities, and provides 

NWP authorization that is responsive to 

the E.O. The Corps recognizes that some 

mariculture operators may choose to 

produce seaweeds or finfish exclusively. 

As discussed in this final rule, the Corps 

issued proposed new NWP A as NWP 

55 and issued proposed new NWP B as 

NWP 56. 

I. 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 the 

recommended reforms was 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, in 

the 2020 Proposal the Corps invited 

comment on whether it can use its 

existing authority to create specific 

procedures or conditions by which 

Federal agencies that want to use NWPs 

for regulated activities would not need 

to submit PCNs, consistent with 

applicable law. The Corps specified 

that, 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)), and the right to 

take action to address situations where 

the Federal agency incorrectly 

determined that the NWP terms and 

conditions were met. 

The Corps sought public comment on 

whether to exempt federal agencies from 

PCN requirements 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. In 

the proposed rule the Corps stated that 

it 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 MagnusonStevens Act. Non-federal permittees are 

not bound to comply with Executive 

Orders. 

Consistent with this legislative 

principle, the Corps requested comment 

on whether to modify the NWPs that 

require PCNs to limit the PCN 

requirement to non-federal permittees. 

The Corps requested that commenters 

provide their views on whether they 

support or oppose having different PCN 

requirements for Federal and nonFederal permittees, with supporting 

information to explain their views. After 

reviewing and considering public 

comments on this proposal, the Corps 

has determined not to finalize any 

change to PCN requirements for federal 

permittees. 

II. Discussion of Public Comments 

A. Overview 

In response to the 2020 Proposal, the 

Corps received more than 22,700 

comment letters, of which 

approximately 22,330 were form letters 

pertaining to the proposed removal of 

the 300 linear foot limit for losses of 

stream bed, the proposed changes to 

NWPs 21, 49, and 50, or the proposed 

reissuance of NWP 12. In addition to the 

various form letters, the Corps received 

2750 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

a few hundred individual comment 

letters. Those individual comment 

letters, as well as examples of the 

various form letters, are posted in the 

www.regulations.gov docket (COE– 

2020–0002) for this rulemaking action. 

The Corps reviewed and fully 

considered all comments received in 

response to the 2020 Proposal. 

B. Responses to General Comments 

Many commenters expressed general 

support for the proposed rule, as well as 

the NWP program as a whole, and many 

commenters stated opposition to the 

proposed changes to the NWPs or the 

use of NWPs to authorize certain 

activities. Many commenters said that 

the NWP program should be 

discontinued. Many commenters 

objected to reissuing the NWPs ahead of 

schedule, stating that early reissuance of 

the NWPs presents an unnecessary 

burden and cost to the agency and the 

public. Many commenters stated that 

the proposed NWPs do not comply with 

the Clean Water Act, the National 

Environmental Policy Act, the 

Endangered Species Act, the National 

Historic Preservation Act, the Magnuson 

Stevens Act, and other federal laws. 

Many commenters said that the NWP 

program is pushing species closer to 

extinction. 

The NWP program is an important 

component of the Corps Regulatory 

Program because it provides an efficient 

means of authorizing activities that 

result in no more than minimal 

individual and cumulative adverse 

environmental effects so that the Corps 

can devote more of its resources for 

evaluating proposed activities that 

require Department of the Army (DA) 

authorization that have the potential to 

cause more substantial adverse 

environmental effects. The 

grandfathering provisions in the Corps’ 

NWP regulations at 33 CFR 

330.6(a)(3)(ii) and 330.6(b) and as 

described in Section I.D, Status of 

Existing Permits, provide mechanisms 

to reduce regulatory burdens when the 

Corps modifies or reissues the NWPs to 

replace existing NWPs. The NWPs are 

issued in compliance with the Clean 

Water Act, the National Environmental 

Policy Act, the Endangered Species Act, 

the National Historic Preservation Act, 

the Magnuson Stevens Act, and other 

applicable federal laws. 

Several commenters said that the 

proposal is not compliant with the 

regulations that govern NWPs. Several 

commenters stated that every NWP 

authorization should be announced 

through a public notice. Several 

commenters said that the Corps does not 

have the authority to enforce state 

conditions. One commenter stated that 

each NWP should include a state-level 

review prior to verification. One 

commenter asserted that the proposal 

violates the authority of individual 

states to resolve noncompliance with 

water quality standard permits. One 

commenter stated that the Corps should 

ensure compliance with Safe Water 

Drinking Act when verifying NWP 

eligibility. One commenter said that the 

proposed rule conflicts with efforts to 

update state general permits. 

The 16 NWPs issued in this final rule 

comply with the Corps’ NWP 

regulations at 33 CFR part 330. The 

NWPs authorize only those activities 

that have no more than minimal 

individual and cumulative adverse 

environmental effects, so it is not 

necessary to issue public notices to 

announce the tens of thousands of NWP 

verification letters Corps districts issue 

each year. The Corps acknowledges that 

it does not have the authority to enforce 

conditions provided by states, except for 

those conditions added to the NWPs by 

water quality certifications by certifying 

authorities and Coastal Zone 

Management Act consistency 

concurrences issued by states, that are 

within the Corps’ legal authority to 

enforce. States can take actions to 

enforce their own water quality 

requirements, including permits issued 

under Section 402 of the Clean Water 

Act. The Corps does not have the legal 

authority to enforce the Safe Water 

Drinking Act. The issuance or 

reissuance of the NWPs is independent 

of the issuance of general permits by 

states, or the issuance of state 

programmatic general permits by Corps 

districts. 

Several commenters said that the 

proposed rule did not allow sufficient 

time for adequate review by states and 

tribes. Several commenters requested 

additional time to review the proposed 

NWPs. One commenter said that the 

comment period should be extended by 

180 days. One commenter stated that 

Corps divisions and districts should not 

solicit comments on proposed regional 

conditions concurrently with the public 

comment period of the NWP reissuance. 

Many commenters said that the Corps 

should have a lead district for every 

state. 

For the 2020 Proposal, the Corps 

provided a 60-day comment period, 

which is same duration the Corps has 

used for past rulemaking actions 

involving the issuance, reissuance, and/ 

or modification of the NWPs. The Corps 

sent response letters to entities that 

made timely requests for extensions of 

the comment period for the 2020 

Proposal. In the 2020 Proposal, the 

Corps did not propose a large number or 

substantial changes to the NWPs. 

Soliciting public comment on proposed 

regional conditions concurrently with 

the proposed issuance or reissuance of 

the NWPs is consistent with the Corps’ 

NWP regulations at 33 CFR 

330.5(b)(2)(ii). The Corps has a 

designated a lead district for each state; 

these districts have been identified 

since 2004. As discussed in Section I.A., 

the Corps issued a Director’s Policy 

Memorandum on May 15, 2018, that 

further clarified its policy for 

designating a lead district for activities 

that require Department of the Army 

permits that cross district or state 

boundaries. 

One commenter stated that the Corps 

is required under Section 404(e) of the 

Clean Water Act to hold a public 

hearing, which it cannot meaningfully 

accomplish given the pandemic. One 

commenter said the NWPs should not 

allow losses of up to 1⁄2-acre of waters 

of the United States in areas that have 

already been heavily impacted and 

should not be used in areas where 

critical and essential habitat exists for 

species that are federally threatened or 

endangered species. 

The Corps declined to hold a public 

hearing on the proposed NWPs because 

it determined that a public hearing was 

unlikely to provide additional 

information that would inform the 

Corps’ decision on whether to issue 

these NWPs. Under the Corps’ 

regulations at 33 CFR 327.4(b), requests 

for public hearing under this paragraph 

shall be granted, unless the Corps 

determines that the issues raised are 

insubstantial or there is otherwise no 

valid interest to be served by holding a 

public hearing. The Corps received 

approximately 22,700 comments on the 

proposed rule, and it is unlikely that 

any statements provided during a public 

hearing would raise issues that are 

different that the issues or concerns 

discussed in the written comments 

received in response to the 2020 

Proposal. 

The NWPs can be used in any area of 

the United States, except where the 

NWPs have been revoked by division 

engineers on a regional basis (e.g., to use 

a programmatic general permit instead 

of the NWPs) or suspended or revoked 

by district engineers on a case-by-case 

basis. The NWPs can be used in a 

variety of areas ranging from 

environmental settings that have been 

heavily impacted by human activities to 

environmental settings that have been 

shaped by fewer or less severe impacts 

caused by human activities. For those 

NWPs with a 1⁄2-acre limit for losses of 

waters of the United States (e.g., NWPs 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2751 

21, 29, 39, 40, 42, 43, 44, 50, 51, and 

52), PCNs are required for all proposed 

activities (except for maintenance 

activities under NWP 43 and losses of 

less than 1⁄10-acre of waters of the 

United States for NWP 51), which gives 

district engineers the opportunity to 

review proposed activities in their 

current environmental setting and 

determine whether those activities will 

result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

The ability for division and district 

engineers to modify, suspend, or revoke 

NWPs on a regional or case-by-case 

basis is a key tool for ensuring that the 

NWPs only authorize activities that 

cause no more than minimal individual 

and cumulative adverse environmental 

effects. There is substantial variation in 

aquatic resource types across the 

country, as well as a large amount of 

variability among geographic regions in 

the quantity of those resources. Those 

regional differences require division and 

district engineers to have the authority 

to tailor the NWPs to address regional 

and site-specific concerns. The NWPs 

can only be issued for a period of 5 

years because of the statutory language 

in section 404(e) of the Clean Water Act, 

as well as the Corps’ regulations at 33 

CFR 330.6(b). Section 330.6(b) states 

that if ‘‘an NWP is not modified or 

reissued within five years of its effective 

date it automatically expires and 

becomes null and void.’’ The 5-year 

cycle for reissuing the NWPs provides 

sufficient time to make necessary 

changes to the NWPs to ensure that the 

NWPs only authorize those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

Many commenters objected to the 

proposed NWPs, stating that they 

authorize activities that result in more 

than minimal individual and 

cumulative adverse environmental 

effects and that they do not authorize 

categories of activities that are similar in 

nature. Many commenters said that the 

Corps has not done any meaningful 

analysis of the cumulative effects from 

NWPs. A few commenters said that 

since the Corps does not require preconstruction notifications (PCNs) for all 

NWP activities, it could not ensure that 

NWP activities result in no more than 

minimal individual and cumulative 

adverse environmental effects. One 

commenter said that Corps districts 

should improve their tracking of 

cumulative impacts. A number of 

commenters opposed the NWPs, stating 

that they authorize activities associated 

with larger projects that have substantial 

environmental impacts. Several 

commenters said that the NWPs should 

either not authorize activities that 

impact streams and rivers occupied by 

anadromous salmon, or compensatory 

mitigation should always be required for 

those activities. One commenter stated 

that the NWPs should not be used in 

areas with substantial cumulative 

impacts, such as essential fish habitat 

and areas inhabited by ESA-listed 

species. Many commenters said that 

Corps should fund an independent 

evaluation of its methodology for 

assessing cumulative impacts. One 

commenter said that the proposal 

should be based on peer-reviewed 

scientific analysis. One commenter 

stated that the proposal should include 

a scientific support document. One 

commenter said that NWPs should only 

authorize activities with predictable 

environmental effects and outcomes. 

The NWP activities that do not 

require PCNs are those activities that 

have characteristics that do not result in 

more than minimal adverse 

environmental effects, such as small 

structures in navigable waters subject to 

section 10 of the Rivers and Harbors Act 

of 1899 or minor fills in waters of the 

United States associated with 

maintenance activities or temporary 

impacts. 

For the issuance or reissuance of these 

NWPs, the Corps has conducted the 

required cumulative effects analyses. In 

the national decision document for each 

NWP issued or reissued in this final 

rule, the Corps evaluated the cumulative 

impacts that are anticipated to occur 

during the 5-year period the NWPs are 

expected to be in effect. The cumulative 

impacts are evaluated against the 

current environmental setting or 

baseline, in accordance with typical 

practices for conducting environmental 

impact analyses. The Corps’ public 

interest review regulations at 33 CFR 

320.4(a)(1) and the Corps’ general 

permit regulations at 33 CFR 322.2(f) 

and 323.2(h) require consideration of 

cumulative effects for the issuance of 

permits. 

For those NWPs that authorize 

discharges of dredged or fill material 

into waters of the United States, the 

Corps complies with the U.S. EPA’s 

regulations at 40 CFR 230.7(b)(3) for 

assessing cumulative impacts for the 

issuance of general permits. Section 

230.7(b)(3) requires the permitting 

authority (e.g., the Corps) to predict 

cumulative effects by evaluating the 

number of individual discharge 

activities likely to be regulated under a 

general permit until its expiration, 

including repetitions of individual 

discharge activities at a single location. 

In its cumulative effects analyses for the 

issuance or reissuance of an NWP, the 

Corps goes further than estimating the 

number of times an NWP may be used 

to authorize activities during the 5-year 

period it is expected to be in effect by 

estimating the acreage of impacts and 

the acreage of compensatory mitigation 

required by district engineers during 

that 5-year period. In its analysis of the 

effects or impacts of the proposed 

issuance or reissuance of the NWPs 

under the Council of Environmental 

Quality’s current NEPA regulations at 

40 CFR 1508.1(g), the Corps also 

estimates the impacts that are 

reasonably foreseeable and have a 

reasonably close causal relationship to 

the proposed action during the 5-year 

period the NWP is expected to be in 

effect. 

These analyses of effects and their 

associated estimates of authorized 

activities, authorized impacts to 

jurisdictional waters and wetlands, and 

compensatory mitigation required by 

district engineers, include NWP 

activities that require PCNs and NWP 

activities that do not require PCNs. The 

Corps disagrees that an independent 

evaluation of these approaches to 

cumulative effects is necessary, or that 

a peer-reviewed scientific analysis or a 

scientific support document should be 

prepared. The Corps follows existing 

federal regulations for assessing 

cumulative effects. In its evaluations of 

individual and cumulative adverse 

environmental effects of activities 

authorized by NWPs, the Corps 

considers reasonably foreseeable effects 

or impacts, especially those effects or 

impacts that are directly or indirectly 

caused by the activity authorized under 

the Corps’ permitting authorities under 

Section 10 of the Rivers and Harbors Act 

of 1899 and Section 404 of the Clean 

Water Act. 

The NWP program provides a threetiered approach to ensure compliance 

with Section 404(e) of the Clean Water 

Act. Those three tiers are: (1) the terms 

and conditions of the NWPs issued by 

Corps Headquarters; (2) the authority of 

division engineers to modify, suspend, 

or revoke NWPs on a regional basis; and 

(3) the authority of district engineers to 

modify, suspend, or revoke NWPs on a 

case-by-case basis. Section 404(e) of the 

Clean Water Act does not specify how 

broad or narrow a category of activity 

must be in order to be covered by a 

general permit. Therefore, that section 

of the Clean Water Act gives the Corps 

the discretion to identify categories of 

activities for the issuance of NWPs. The 

Corps interprets broadly the 

requirement for general permits to 

authorize categories of activities that are 

similar in nature, to provide program 

2752 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

efficiency, to keep the number of NWPs 

manageable, and to facilitate 

implementation by the Corps and 

project proponents that need to obtain 

Department of the Army (DA) 

authorization for activities that have no 

more than minimal adverse 

environmental effects. 

While the Corps recognizes that many 

NWP activities may be components of 

larger overall projects, the Corps’ 

authorities under the NWP program are 

limited to discharges of dredged or fill 

material into waters of the United States 

that are regulated under Section 404 of 

the Clean Water Act, and structures and 

work in navigable waters that are 

regulated under Section 10 of the Rivers 

and Harbors Act of 1899. The Corps 

does not regulate other components of 

those larger overall projects, such as 

activities that occur in upland areas. In 

many cases, the NWPs are authorizing 

minor features that may be part of those 

larger overall projects but that still does 

not bring those larger upland features 

into the Corps’ jurisdiction. 

Division engineers can impose 

regional conditions on the NWPs to 

protect rivers and streams inhabited by 

anadromous fish, including salmon. For 

those salmonids that are listed as 

endangered or threatened under the 

Endangered Species Act (ESA), general 

condition 18 requires PCNs for all NWP 

activities proposed to be undertaken by 

non-federal permittees that might affect 

those listed species or their designated 

critical habitat (or proposed species or 

proposed critical habitat), or that occur 

in their designated or proposed critical 

habitat. If a proposed NWP activity may 

adversely affect essential fish habitat, 

the district engineer will conduct 

essential fish habitat consultation with 

the NMFS. District engineers have the 

discretion to require compensatory 

mitigation to offset stream losses caused 

by NWP activities. After conducting 

ESA section 7 consultation or essential 

fish habitat consultation, the district 

engineer may determine that stream 

compensatory mitigation is necessary to 

ensure that the NWP activity results in 

no more than minimal individual and 

cumulative adverse environmental 

effects. A division engineer has the 

authority to modify, suspend, or revoke 

one or more NWPs in a geographic 

region if he or she determines that the 

use of that NWP or NWPs will result in 

more than minimal cumulative adverse 

environmental effects. 

One commenter said the NWPs 

should not authorize activities that 

result in adverse environmental 

impacts. One commenter stated that the 

terms and conditions of the NWPs 

should not be changed to be less 

protective of the environment. Several 

commenters said that public notices 

should be issued for NWP PCNs to 

disclose proposed NWP activities and 

increase public participation. A number 

of commenters suggested that NWPs 

should require no net loss of aquatic 

resources. A number of commenters 

asked why the proposed NWPs use the 

term ‘‘no more than minimal adverse 

environmental effects’’ instead of ‘‘no 

more than minimal adverse effects on 

the aquatic environment.’’ 

Section 404(e) of the Clean Water Act 

recognizes that activities authorized by 

general permits, including NWPs, will 

result in adverse environmental 

impacts, but limits those adverse 

impacts so that they can only be no 

more than minimal. The Corps has 

adopted terms and conditions for the 

NWPs to be sufficiently protective of the 

aquatic environment while allowing 

activities that result in no more than 

minimal adverse environmental effects 

to be conducted. 

Requiring public notices for PCNs 

would be contrary to the purpose of the 

general permit program established 

through section 404(e) of the Clean 

Water Act, for a streamlined 

authorization process for activities that 

result in no more than minimal 

individual and cumulative adverse 

environmental effects. In addition, it is 

unlikely that there would be any 

meaningful public comment submitted 

to Corps districts in response to public 

notices for the minor activities 

authorized by these NWPs that would 

warrant the reduction in permitting 

efficiency providing such a comment 

period would cause. Compensatory 

mitigation can only be required by the 

district engineer after he or she reviews 

the PCN and determines that 

compensatory mitigation is necessary to 

comply with the ‘‘no more than minimal 

adverse environmental effects’’ 

requirement for NWPs (see 33 CFR 

330.1(e)(3)). There is no federal statute 

or regulation that requires ‘‘no net loss’’ 

of aquatic resources. The ‘‘no overall net 

loss’’ goal for wetlands articulated in the 

1990 U.S. EPA-Army Memorandum of 

Agreement for mitigation for Clean 

Water Act section 404 permits states 

that the section 404 permit program will 

contribute to that national goal. The 

1990 Memorandum of Agreement only 

applies to standard individual permits, 

not to general permits. 

The NWP program provides valuable 

protection to the Nation’s aquatic 

resources by establishing incentives to 

avoid and minimize losses of 

jurisdictional waters and wetlands in 

order to qualify for the streamlined 

NWP authorizations. A large majority of 

fills in jurisdictional waters and 

wetlands authorized by general permits 

and individual permits are less than 1⁄10- 

acre (see Figure 5.1 in the Regulatory 

Impact Analysis for this final rule, 

which is available in the 

www.regulations.gov docket (COE– 

2020–0002)). The 16 NWPs use the term 

‘‘no more than minimal adverse 

environmental effects’’ to be consistent 

with the text of Section 404(e) of the 

Clean Water Act and 33 CFR 322.2(f)(1) 

for Section 10 of the Rivers and Harbors 

Act of 1899. When making no more than 

minimal adverse environmental effects 

determinations for proposed NWP 

activities, the district engineer considers 

the adverse effects to the aquatic 

environment and any other factor of the 

public interest (e.g., 33 CFR 330.1(d)). 

The district engineer also applies the 10 

criteria listed in paragraph 2 of Section 

D, District Engineer’s Decision. The use 

of the term ‘‘no more than minimal 

adverse environmental effects’’ does not 

expand the Corps’ scope of analysis. 

The Corps’ control and responsibility 

remains limited to the activities it has 

the authority to regulate, and the effects 

to the environment caused by those 

activities. 

Several commenters said that the 

proposed NWPs are not sufficiently 

protective of freshwater mussels. One 

commenter stated that the NWPs should 

be modified to provide additional 

protections to wilderness areas. Several 

commenters identified specific areas of 

the country where they were concerned 

that the use of the NWPs would 

authorize activities with adverse 

environmental impacts. Many 

commenters said that the NWPs have 

increased coastal communities’ 

vulnerability to future flood events by 

accelerating wetland alteration 

following hurricanes. One commenter 

stated that the NWPs should be revoked 

in areas included under the Safe 

Drinking Water Act, such as public 

water systems source water areas. One 

commenter said that all NWPs should 

be subject to an acreage limit of 1⁄10-acre. 

Impacts to freshwater mussels that are 

listed as endangered or threatened 

under the ESA are addressed through 

general condition 18 and the subsequent 

ESA section 7 consultations that occur 

when district engineers review PCNs 

and determine that a proposed NWP 

activity may affect listed mussels. 

Where there are concerns about the use 

of NWPs in wilderness areas and other 

specific waterbodies or geographic areas 

of the United States, division engineers 

can add regional conditions to the 

NWPs to restrict or prohibit their use in 

those areas. The Corps does not have the 

legal authority to address the 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2753 

vulnerability of coastal communities to 

future flood events or the loss of 

wetlands in coastal areas due to erosion, 

subsidence, and sea level rise. Public 

water systems source water areas are 

generally watersheds, and the Corps 

does not have the authority to regulate 

activities in uplands in these 

watersheds that may affect water 

supplies for communities. For those 

NWP activities that require PCNs, 

district engineers can consider effects to 

water supplies caused by regulated 

activities, as one of the Corps’ public 

interest review factors (i.e., water 

supply and conservation at 33 CFR 

320.4(m)) that can be a basis for 

exercising discretionary authority. The 

Corps believes that the 1⁄2-acre limit for 

the NWPs, the PCN review process, and 

the ability of division engineers to 

modify, suspend, or revoke the NWPs 

on a regional or case-specific basis is 

sufficient for ensuring that the NWPs 

that have the 1⁄2-acre limit authorize 

only those activities that result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. 

One commenter stated that 

implementing NWPs under the 

Navigable Waters Protection Rule 

(NWPR) will result in more than 

minimal impacts and not account for 

areas that were jurisdictional but are not 

under current rule. Many commenters 

said that the NWPs should include 

language clarifying that not all ditches 

constructed in adjacent wetlands are 

jurisdictional. Many commenters stated 

that the discussion of wetland 

jurisdiction in the NWPs should mirror 

that in the NWPR. Many commenters 

asserted that there are inconsistencies 

between the proposed NWPs and the 

NWPR. Several commenters said that 

the terminology in the NWPs should be 

consistent with the NWPR, especially 

the terms ‘‘stream,’’ ‘‘tributary,’’ and 

‘‘ephemeral.’’ 

The NWPs are used to authorize 

activities in waters and wetlands that 

are jurisdictional under the Corps’ 

permitting authorities: Section 404 of 

the Clean Water Act and Section 10 of 

the Rivers and Harbors Act of 1899. If 

a project proponent wants to discharge 

dredged or fill material into a waterbody 

that is not subject to Clean Water Act 

jurisdiction under the NWPR, then DA 

authorization under an NWP or any 

other type of Corps permit is not 

required for that proposed discharge. 

The Corps declines to add language to 

this final rule regarding the 

jurisdictional status of ditches under the 

Clean Water Act because that 

jurisdictional status is more 

appropriately addressed through 

application of the provisions of the 

NWPR at 33 CFR part 328. Many of the 

NWPs can be used to authorize 

discharges of dredged or fill material 

into numerous wetland types that are 

subject to Clean Water Act jurisdiction 

under the NWPR. There are no 

inconsistencies between the proposed 

NWPs and the NWPR. The NWPs can be 

used to authorize specific activities in 

waters and wetlands that are subject to 

Clean Water Act jurisdiction under the 

NWPR. Some of the NWPs specifically 

authorize discharges of dredged or fill 

material into streams, so the Corps 

declines to replace the term ‘‘stream’’ 

with ‘‘tributary.’’ Under the NWPR, 

ephemeral features, including 

ephemeral streams are excluded from 

Clean Water Act jurisdiction. 

One commenter requested that the 

Corps issue a new NWP with no PCN 

requirements that authorizes emergency 

projects such as repair of significant 

leaks from canals, tunnels, and other 

features, culvert repair and replacement, 

critical pump plant repairs, and small 

scale urgent natural disaster mitigation 

projects. One commenter suggested that 

the Corps issue a new NWP to authorize 

natural disaster mitigation projects (e.g., 

fire or flood repairs or mitigation 

projects) with an acreage limit of 1⁄10- 

acre. One commenter stated that the 

Corps should issue a new NWP to 

authorize aggregate mining activities, 

instead of NWP 44. One commenter said 

that the Corps should prioritize NWP 

verifications for time-sensitive 

maintenance and emergency work. One 

commenter stated that the proposal 

should include a list of typically 

exempted activities, such as ditch 

maintenance. One commenter said that 

that the NWPs should include a general 

condition to limit the spread of 

invasive/noxious species. 

The Corps declines to issue a new 

NWP to authorize the repair of leaks 

from canals, tunnels, and other features 

because NWP 3 can be used to authorize 

discharges of dredged or fill material 

into waters of the United States or 

structures or work in navigable waters 

of the United States to repair leaking 

structures or fills. The Corps also 

declines to issue a new NWP to 

authorize natural disaster mitigation 

projects. Some of these activities are 

already authorized by NWP 37, 

emergency watershed protection and 

rehabilitation activities. Some of these 

activities can also be authorized through 

the Corps’ emergency permitting 

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

Nationwide permit 44 authorizes 

aggregate mining activities, so it is not 

necessary to issue another NWP to 

authorize those activities. District 

engineers currently have the authority 

to prioritize authorization of timesensitive maintenance and emergency 

work, including the use of the 

emergency permitting procedures at 33 

CFR 325.2(e)(4). Certain NWPs include 

notes that point to exemptions that may 

be related to authorized activities. The 

Corps declines to add a general 

condition to the NWPs to require 

permittees to take actions to limit the 

spread of invasive or noxious species 

because such a condition would not be 

reasonably enforceable and invasive or 

noxious species can spread through 

natural mechanisms outside the control 

of permittees. The Corps’ regulations at 

33 CFR 325.4(a) requires permit 

conditions to be directly related to the 

impacts of the proposal, appropriate to 

the scope and degree of those impacts, 

and reasonably enforceable. 

(1) Status of Existing Permits 

In response to the 2020 Proposal, the 

Corps received comments concerning 

the status of existing NWP 

authorizations and how the issuance of 

the final rule may affect those existing 

authorizations. The Corps also invited 

public comment on changing the 

expiration date for the 2017 NWPs to 

avoid having two sets of NWPs in effect 

at the same time. 

Many commenters stated that current 

NWPs should expire on their original 

expiration date (i.e., March 18, 2022). 

Several commenters expressed support 

for the 2017 NWPs expiring the day 

before the new NWPs become effective 

in order to provide certainty and 

continuity without imposing burdens on 

permittees, provided that all activities 

authorized by the 2017 NWPs remain 

approved regardless of whether those 

activities meet the requirements of the 

new NWPs. These commenters also 

wanted to avoid having differing sets of 

NWPs in effect at the same time. 

Many commenters stated that the 

Corps proposed grandfathering 

procedure would cause uncertainty and 

disruption to those who are relying on 

the expiration date of the 2017 NWPs 

and the 12-month grandfathering 

period. A few commenters said that the 

grandfathering process and applicability 

was unclear. One commenter stated that 

previously verified activities should be 

allowed to continue under the 2017 

NWPs unless the new NWPs are more 

restrictive. One commenter stated that if 

the NWPs issued in the final rule 

replaces the 2017 NWPs and the NWPs 

issued in the final rule go into effect 

before the 2017 NWPs were originally 

scheduled to expire on March 18, 2022, 

the Corps should notify all permittees 

who submitted PCNs or received NWP 

2754 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

verification letters under the 2017 

NWPs. 

The Corps acknowledges that that 

these changes to the NWPs may cause 

uncertainty and disruption for some 

project proponents who have received 

NWP verifications from the Corps. 

However, the Corps believes this 

disruption will be limited because the 

activities affected by the changes to the 

12 existing NWPs are likely to continue 

to qualify for NWP authorization. 

Further, project proponents can work 

with Corps districts to efficiently obtain 

NWP verifications under the reissued 

NWPs. The information previously 

submitted to Corps districts via PCNs 

can be used to provide NWP 

verifications for many of the activities 

that will be authorized by the new 

NWPs for different types of utility line 

activities that were previously 

authorized by NWP 12. It is impractical 

to require the Corps districts to reach 

out to all permittees who received NWP 

verifications under the 2017 NWPs that 

are reissued in this final rule because of 

the number of verified activities. Once 

an NWP verification has been provided 

there is no obligation for a permittee to 

undertake the work that has been 

permitted; therefore, there it is 

impractical for the Corps to follow-up 

on every verification to ascertain if the 

work has been completed and/or 

whether the project proponent still 

intends to proceed with the activity 

authorized under the NWP. 

One commenter asked what would 

happen to activities approved under the 

2017 NWPs that would start 

construction prior to March 18, 2022, 

but after the implementation dated of 

the new NWPs. One commenter stated 

that activities that no longer qualify 

under the new NWPs but were verified 

under the 2017 NWPs should have 18 

months to complete the authorized 

activity. One commenter questioned 

whether projects verified under the 

2017 NWPs would still be valid as 

verified or would they be in noncompliance and require re-authorization 

either by NWP or by individual permit. 

If a project proponent received an 

NWP verification under one of the 2017 

NWPs, and the activity continues to be 

authorized by one of the existing NWPs 

that was reissued, that activity 

continues to be authorized by the 2017 

NWP until it expires on March 18, 2022, 

unless the district engineer specified a 

different expiration date in the NWP 

verification letter (see 33 CFR 

330.6(a)(3)(ii)). In contrast to the 

grandfathering provision at 33 CFR 

330.6(b), the grandfathering provided by 

section 330.6(a)(3)(ii) is not dependent 

on when the project proponent 

commences construction. If the activity 

is not authorized by the reissued NWP, 

then the project proponent has 12 

months to complete the authorized 

activity after the 16 final NWPs go into 

effect as long as the project proponent 

has commenced construction or is 

under contract to commence 

construction before the new expiration 

date for the twelve 2017 NWPs that are 

reissued in this final rule (see 33 CFR 

330.6(b)). The Corps’ regulations at 33 

CFR 330.6(b) specify a 12-month 

grandfathering period for activities that 

no longer qualify for authorization 

under the reissued NWP if the activity 

has commenced or is under contract to 

commence prior to the expiration of the 

NWP. To change that 12-month period 

to 18 months would require rulemaking 

to amend the regulation. The validity of 

the prior NWP authorization would 

depend on whether the activity 

continues to be authorized by any of the 

16 NWPs issued in this final rule, and 

whether any of the grandfathering 

provisions in 33 CFR 330.6 apply. 

One commenter said that based on 

section 330.6(b) permittees should have 

until March 18, 2023 to complete 

projects authorized under the 2017 

NWPs as long as they are under 

construction or contract to commence 

construction. One commenter stated 

that special emphasis should be placed 

on NWP 12 if it is split into three NWPs, 

to ensure that activities previously 

authorized under the 2017 NWP 12 

continue to be permitted through the 

date specified in the verification letter. 

One commenter stated that the Corps 

should allow for a reasonable transition 

between existing activities authorized 

by an NWP and the new NWPs, for up 

to one year. 

As discussed above, electric utility 

line and telecommunications activities 

and utility line activities for water and 

other substances continue to be 

authorized by the 2017 NWP 12 for up 

to 12 months as long as the project 

proponent has commenced construction 

or is under contract to commence 

construction before NWPs 57 and 58 go 

into effect. Given the anticipated 

effective date of this final rule, the 12- 

month grandfathering provision is likely 

to end close to March 18, 2022. The 

Corps believes that the current 

regulations provide a reasonable 

transition from the 2017 NWPs to the 16 

NWPs issued in this final rule. 

(2) Pre-Construction Notification 

Requirements 

A few commenters stated they are 

supportive of the reduction of the 

number of PCN thresholds under 

various NWPs. A few commenters said 

they are supportive of the removal of the 

300 linear foot PCN threshold. Many 

commenters stated that they are 

opposed to reducing the number of PCN 

thresholds for the NWPs because they 

believe these PCN thresholds are 

necessary to ensure that the activities 

authorized by these NWPs have no more 

than minimal adverse environmental 

effects. A few commenters said that the 

lack of PCNs does not meet the national 

no-net-loss of aquatic resources goal 

because these losses are not being 

mitigated. A few commenters stated 

their opposition to the removal of the 

300 linear foot PCN thresholds. Several 

commenters said that they are opposed 

to federal agencies not having to submit 

PCNs because it is contrary to the Clean 

Water Act. 

The changes to the PCN thresholds for 

the NWPs are discussed in the sections 

of the final rule that apply to each NWP. 

With the removal of the 300 linear foot 

limit for losses of stream bed, the Corps 

has also removed the ability of district 

engineers to waive that 300 linear foot 

limit on a case-by-case basis after 

reviewing PCNs. Activities can be 

authorized by NWPs with no 

compensatory mitigation requirements 

as long as those activities result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. In FY 2018, approximately 11 

percent of activities verified by district 

engineers as qualifying for NWP 

authorization required compensatory 

mitigation. There is no requirement in 

law or regulation for no net loss of 

aquatic resources. The requirement for 

what can be authorized by an NWP is 

that established by Section 404(e) of the 

Clean Water Act requiring activities 

authorized by NWPs to cause only 

minimal individual and cumulative 

adverse environmental effects. As 

discussed in Section II.D, the Corps is 

retaining PCN requirements for federal 

agencies that use the NWPs to authorize 

their activities. 

A few commenters said that PCNs 

should be required for all NWP 

activities to ensure the authorized 

activities are not affecting the 

environment adversely and to ensure 

the permittee is avoiding and 

minimizing impacts to the maximum 

extent practicable. One commenter 

stated that a PCN should be required to 

ensure compliance with Section 106 of 

the National Historic Preservation Act. 

One commenter said that the timing of 

the review process for a PCN is not 

identified in the proposed rule for any 

of the NWPs. 

The Corps establishes PCN thresholds 

for those NWP activities that have the 

potential to cause more than minimal 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2755 

adverse environmental effects, to 

provide activity-specific review and 

allow district engineers to exercise 

discretionary authority and require 

individual permits for activities that 

will have more than minimal adverse 

environmental effects. General 

condition 20 establishes PCN 

requirements for proposed NWP 

activities that have the potential to 

cause effects to historic properties that 

are undertaken by non-federal 

permittees. The timing of the PCN 

review process is provided in general 

condition 32. 

One commenter stated that the Corps 

undertakes many actions under its 

permitting authorities for which the 

tribes and villages are not notified. One 

commenter asked how the Corps 

ensures no more than minimal adverse 

environmental effects if a default NWP 

authorization occurs after 45 days has 

passed after the district engineer 

receives a PCN. One commenter asked 

for clarification as to how the Corps 

ensures compliance for activities that do 

not require PCNs. One commenter 

requested that Corps Headquarters 

clarify to each of the Corps districts that 

it is up to the permittee to determine 

whether a PCN is required or not. 

In conjunction with the rulemaking 

process for the issuance of these NWPs, 

Corps districts have been conducting 

consultation and coordination with 

tribes to identify regional conditions 

and coordination procedures to ensure 

compliance with general condition 17, 

concerning tribal rights. Activities that 

qualify for the default authorization that 

occurs 45-days after the district engineer 

receives a complete PCN must comply 

with all conditions of the NWP, 

including the general conditions and 

any applicable regional conditions 

imposed by the division engineer. The 

permittee is responsible for reading the 

NWPs and all of their conditions to 

determine whether he or she is required 

to submit a PCN before proceeding with 

an authorized activity. 

One commenter said that for linear 

projects that are considered ‘‘single and 

complete,’’ where some crossings do not 

require PCNs, the permittee should not 

have to divulge the non-PCN crossing 

information to the Corps because the 

permittee is not required to provide the 

same level of documentation for nonPCN crossings, and the project 

proponent should be free to move 

forward with the non-PCN crossings. 

One commenter encouraged the Corps 

to implement a nationwide tracking and 

monitoring system for NWPs with PCN 

requirements to share information with 

cooperating resource agencies so that 

informed decisions can be made 

regarding changes to the NWP program. 

The information on the non-PCN 

crossings associated with a linear 

project is necessary so that the district 

engineer can consider all crossings of 

waters of the United States that require 

DA authorization when making his or 

her determination that the proposed 

NWP activities will result in no more 

than minimal cumulative adverse 

environmental effects. The information 

required by paragraphs (b)(4)(i) and (ii) 

of general condition 32 does not change 

these non-PCN crossings into those 

requiring PCNs. The Corps tracks all 

NWP verifications issued for activities 

that require PCNs and for activities 

reported to Corps districts through 

voluntary PCNs where the permittee 

seeks written verification even though 

he or she is not required to do so. 

(3) Climate Change 

Many commenters said that the Corps 

should consider climate change during 

the reissuance of these NWPs. One 

commenter stated that the Corps failed 

to analyze climate change, the risk of 

which will be exacerbated by the 

issuance of the NWPs. Some of these 

commenters stated that the Corps 

should consider increased energy 

consumption as a foreseeable indirect 

effect of the Corps’ decisions for these 

NWPs. Several commenters asserted 

that the proposed changes to the NWPs 

will have significant impacts on the 

environment, including climate change. 

One commenter said that the 

cumulative impacts of stream and 

wetland losses from NWP activities 

must be considered in the context of the 

changing climate. Several commenters 

stated that the proposed NWPs help 

support the nation’s investment of its 

infrastructure, including changes to 

infrastructure to address global climate 

change. 

The Corps has considered climate 

change during the reissuance of the 

NWPs, and each of the national decision 

documents includes a discussion of 

climate change. Although some 

activities authorized by various NWPs 

may be associated with energy 

production, distribution, and use, the 

Corps does not have the authority to 

regulate or control the production, 

distribution, or combustion of 

hydrocarbons and other materials are 

sources of carbon dioxide and other 

greenhouse gases that contribute to 

global climate change. Permittees may 

use equipment during the construction 

of the NWP activity that emits carbon 

dioxide and other greenhouse gases, but 

those emissions occur during the 

construction period for the authorized 

activity and have an insignificant 

contribution to cumulative greenhouse 

gas emissions in the region. The 

activities authorized by NWPs may 

result in permanent or temporary 

impacts to wetlands and streams, and 

the discharges of dredged or fill material 

into waters of the United States and 

structures and work in navigable waters 

of the United States are only a subset of 

the variety of human activities that 

change the quantity and quality of 

wetlands, streams, and other aquatic 

resources. Those other human activities 

are discussed in section 4.0 of the 

national decision documents for these 

NWPs. Some activities authorized by 

the NWPs, such as utility line activities, 

bank stabilization activities, living 

shorelines, and aquatic resource 

restoration activities contribute to 

adaptation to climate change. 

C. Comments on Proposed Actions 

Under Executive Order 13921, 

Promoting American Seafood 

Competitiveness and Economic Growth 

In response to the 2020 Proposal, the 

Corps received comments on its 

proposed actions under Executive Order 

13921, Promoting American Seafood 

Competitiveness and Economic Growth. 

The comments on proposed NWPs A 

and B for seaweed mariculture activities 

and finfish mariculture activities, 

respectively, are discussed in Section 

II.G of this final rule. In response to the 

section of the 2020 Proposal on E.O. 

13921, the Corps received a few 

comments on aquaculture in other 

waters of the United States, but those 

commenters seemed to think that the 

mariculture NWPs might also authorize 

aquaculture activities in those other 

waters (e.g., freshwater lakes, ponds, 

and wetlands). The new NWPs 55 

(seaweed mariculture activities) and 56 

(finfish mariculture activities) limit 

those activities to estuarine and marine 

waters. These new NWPs also authorize 

multi-trophic mariculture activities. 

D. Comments on the 2018 Legislative 

Outline for Rebuilding Infrastructure in 

America 

In the 2020 Proposal, the Corps 

requested comment on whether to 

modify the NWPs that require PCNs to 

limit the PCN requirement to nonfederal permittees. The Corps requested 

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. 

After considering the comments 

received in response to the proposal 

based on the 2018 Legislative Outline 

2756 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

for Rebuilding Infrastructure in 

America, for the final NWPs the Corps 

decided to continue to subject both 

federal permittees and non-federal 

permittees to the same PCN 

requirements. Overall, the comments 

received in response to this aspect of the 

proposed rule did not support a 

reasoned and defensible rational for 

establishing different PCN requirements 

for federal and non-federal entities that 

use the NWPs to authorized activities 

that require DA authorization under 

Section 404 of the Clean Water Act and 

Section 10 of the Rivers and Harbors Act 

of 1899. The comments the Corps 

received did not provide a substantive 

basis for establishing different PCN 

requirements for federal permittees and 

non-federal permittees, or establishing 

that federal permittees generally have a 

better record than non-federal 

permittees for complying with the 

NWPs and complying with related laws 

such as the Endangered Species Act and 

the National Historic Preservation Act. 

While the Corps would retain its 

enforcement authorities under the 

proposal, continuing to require federal 

agencies to submit PCNs is a more 

efficient means of ensuring that the 

NWPs authorize only those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

Many commenters opposed the 

proposal to remove PCN requirements 

for federal permittees that want to use 

the NWPs to authorize their activities, 

because it would apply different PCN 

requirements and standards to federal 

versus non-federal permittees. Some of 

these commenters said this change may 

result in inadvertent violations. Some of 

these commenters stated that applying 

different PCN requirements for federal 

and non-federal permittees has no 

rational basis, and PCN requirements 

should be based on the regulated 

activity, not who undertakes the 

regulated activity. 

After reviewing the comments 

received in response to this aspect of the 

proposal, the Corps agrees that there is 

no substantive basis for establishing 

different PCN requirements for federal 

and non-federal permittees. The Corps 

is thus retaining the existing PCN 

requirements for federal permittees. 

Many commenters questioned 

whether federal agencies employ 

environmental experts qualified to 

review the projects before submitting 

the PCNs to the Corps and ensure that 

those federal agencies comply with 

applicable laws, regulations, and 

policies. Some these commenters said 

that expertise is inconsistent in terms of 

presence and depth among different 

federal agencies. They stated that staff at 

Corps districts are the best equipped 

with the technical knowledge and 

familiarity to administer the program 

and provide compliance oversight. 

The Corps agrees that knowledge 

regarding environmental laws and 

regulations, and experience in preparing 

environmental documentation to 

demonstrate compliance with 

environmental laws, varies among 

people as a whole, and is not dependent 

on whether they work for a federal 

government agency. As discussed in the 

2020 Proposal, many non-federal 

permittees seek the assistance of 

environmental consultants to help them 

obtaining DA authorization through the 

NWP authorization process. 

Many commenters pointed out that 

PCNs allow the NWP program to meet 

the goal of no more than minimal 

individual and cumulative adverse 

impacts to the environment. Many of 

them said that exempting activities 

undertaken by federal agencies would 

reduce the ability of the Corps to track 

the cumulative effects of the NWP 

program. Many commenters expressed 

concerns with the Corps not assessing 

compensatory mitigation for federal 

permittees. They said there would be no 

mechanism for oversight and assurance 

that mitigation is completed and legally 

binding. Some of these commenters 

stated that federal permittees would 

have no incentive to avoid and 

minimize impacts and it is a clear 

conflict of interest for federal agencies, 

as they are incentivized to ensure their 

projects are permitted with as little cost 

as possible. 

The Corps is continuing to require 

PCNs from federal permittees, so there 

will be no change in the number of 

PCNs. District engineers will still review 

PCNs and require compensatory 

mitigation and other forms of mitigation 

when necessary to ensure that NWP 

activities result in no more than 

minimal individual and cumulative 

adverse environmental effects. 

Regarding the proposed definition of 

non-federal permittee, several 

commenters asked about the 

circumstances under which a nonfederal permittee would be considered a 

federal permittee, and whether federal 

funding or some other federal nexus 

involving a local partner would be a 

factor. Some commenters inquired 

whether a state or local agency who has 

been delegated NEPA authority be 

considered a non-federal permittee. 

Several commenters said that there 

would need to be a clearer definition to 

help identify federal permittees who 

would no longer have to submit PCNs 

for proposed NWP activities. Because 

the Corps is retaining PCN requirements 

for federal agencies, it declines to 

speculate on how it would have 

implemented the proposal. 

Several commenters stated that 

delegation of the section 404 permitting 

program to another federal agency is not 

likely to be legally permissible and 

might expose the Corps to litigation. 

Some of these commenters said that 

case law suggests that such delegation of 

a federal agency’s statutory authority is 

not allowed, especially in the absence of 

memorandum of agreement between 

agencies. Not requiring PCNs from 

federal permittees for NWP activities is 

not be a delegation of the section 404 

permitting program. The Corps 

continues to implement the NWP 

program and take actions necessary 

ensure that NWP activities comply with 

the terms and conditions of those 

authorizations, including potential 

actions identified in its enforcement 

regulations at 33 part CFR 326. 

Several commenters did not support 

the inclusion of state departments of 

transportation (DOTs) that have been 

assigned NEPA responsibilities in the 

category of federal permittees that 

would not have to submit PCNs for 

proposed NWP activities. Some of these 

commenters said that state DOTs may 

forgo internal mitigation programs if 

PCNs were no longer required and 

district engineers would not have the 

ability to impose mitigation 

requirements on NWP activities through 

conditions added to the NWP 

authorization. Some commenters said 

that long-term linear transportation 

projects are some of the biggest 

contributors of turbidity in the nation’s 

waterbodies and can have permanent 

impacts to streams and wetlands. Some 

DOTs already have funding agreements 

with the Corps in most states to provide 

supplemental staff that are required to 

implement impartial decision-making 

and are overseen and reviewed by nonfunded regulators to ensure 

transparency and fairness. A few 

commenters said that if these critical 

safeguards be removed, DOTs will not 

be impartial or unbiased, and could 

undermine the environmental 

protections provided by the PCN 

process. Since the Corps is not changing 

the PCN requirements for federal 

permittees, it declines to speculate on 

how it would have implemented the 

proposed definition of ‘‘non-federal 

permittee’’ and other aspects of the 

proposal. 

A few commenters stated that 

removing PCN requirements for federal 

permittees could limit the ability of 

states to ensure that state water quality 

standards are being met under Section 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2757 

401 of the Clean Water Act. If PCNs are 

not required, the regulatory scope of 

water quality protection shifts from preimpact permitting review to more 

resource intensive field compliance, 

creating a burden on the regulatory 

entities responsible for protection of 

water quality. Pre-construction 

notifications ensure that NWP activities 

are consistent with water quality 

standards, water quality management 

plans/continuing planning process, total 

daily maximum loads, and antidegradation policy. 

The PCN requirements do not affect 

the requirements of Section 401 of the 

Clean Water Act. If a certifying agency 

does not issue water quality certification 

for the issuance of an NWP that does not 

require pre-construction notification, 

the project proponent is still required to 

obtain an activity-specific water quality 

certification or waiver for the proposed 

discharge. 

A few commenters stated that the 

further an agency’s focus is from natural 

resource management, the input from 

state fish and wildlife agencies is more 

critical. These commenters said that the 

participation of state natural resource 

agencies in the PCN review process 

helps ensure potential impacts to state 

trust resources are considered, and 

ensures public trust property is not 

taken without compensation. The Corps 

does not coordinate PCNs with state 

natural resource agencies, except for a 

few exceptions. Those exceptions are 

identified in paragraph (d) of general 

condition 32. 

Several commenters pointed out that 

both federal and state projects are 

causes of some of the nation’s largest 

wetland losses. These commenters said 

that if PCN requirements are removed, 

there will be no way to assess the 

impacts of these large-scale projects and 

it would result in huge aquatic resource 

losses. Several commenters stated that 

few federal agencies have the level of 

experience in working with and 

consulting tribes and said that PCNs 

should continue to be required in order 

to provide communication between the 

potentially impacted tribe, the Corps, 

and the federal agency regarding any 

potential impacts to tribal lands and 

resources. Since the Corps is retaining 

PCN requirements for federal 

permittees, these concerns have been 

addressed. 

A commenter said that the preamble 

to the proposed rule explains that the 

PCN process also provides a database to 

inform renewal of NWPs. A couple of 

commenters stating that the Corps’ 

assumption that non-federal entities, 

such as private entities, non-profits and 

even state governments do not possess 

the same or higher expertise than the 

federal government is arbitrary and 

unfair. One commenter stated that there 

has been an erosion of positions within 

agencies along with the required 

expertise for such environmental 

reviews. Since the Corps is retaining 

PCN requirements for federal 

permittees, there is no need to speculate 

on how it would have implemented the 

proposal. 

A couple of commenters said that 

Section 313 of the Clean Water Act 

states in no uncertain terms that all 

federal agencies ‘‘shall be subject to, and 

comply with, all federal, state, 

interstate, and local requirements 

respecting the control and abatement of 

water pollution in the same manner, 

and to the same extent, as any 

nongovernmental entity.’’ A couple of 

commenters stated that removal of the 

PCN requirements for federal permittees 

would make it difficult for states to 

identify violations and impossible for 

the Corps to ensure that the conditions 

of the permits are being property 

implemented, especially since recent 

changes to the EPA’s regulations for 

Clean Water Act Section 401 water 

quality certifications, which preclude 

certifying authorities from monitoring 

and enforcing conditions of permitted 

activities. Since the Corps is retaining 

PCN requirements for federal 

permittees, there is no need to respond 

to these comments. 

One commenter requested 

clarification regarding use of the phrase 

‘‘NEPA responsibility for all federal 

highway project in the state’’, and asked 

whether the Corps intended to only 

provide federal permittee status to those 

NEPA assignment states who accept all 

federal highway projects in the state. 

One commenter stated that state 

transportation agencies would gain 

efficiency by elimination of PCNs for 

many small projects. A few commenters 

supported the proposal and believe it 

will streamline review and approval of 

permitting while allowing the Corps to 

focus on individual permitting needs. 

Several commenters supported the 

proposed definition of ‘‘non-federal 

permittee’’ including the inclusion of 

state DOTs. The Corps is not adopting 

the proposed definition of ‘‘non-federal 

permittee’’ so it is not necessary to 

address the comments on the proposed 

definition. 

One commenter supports the PCN 

process and encourages the Corps to 

work with state agencies for additional 

options such as reducing comment 

periods to reduce overall time 

constraints associated with Corps 

permitting. Several commenters 

suggested that there should be a 

certification process through which 

individuals receive training by the 

Corps and demonstrate that they have 

sufficient knowledge to preserve the 

intent of the NWPs. They said the Corps 

should develop a set of criteria that each 

entity needs to meet to demonstrate 

proficiency to allow the entity to be 

exempt from submitting PCNs for 

proposed NWP activities. 

The Corps does not solicit comments 

from state agencies on proposed NWP 

activities, except for certain NWP 

activities identified in paragraph (d) of 

general condition 32. The Corps does 

support the development of a 

certification process for potential users 

of the NWPs. Certain NWPs do not 

require the submission of PCNs but for 

those that do, district engineers will 

continue to review and render decisions 

on those actions. 

One commenter suggested that the 

Corps exempt private companies that 

are undertaking projects in conjunction 

with, or in response to, federal projects. 

One commenter stated that the Corps 

should clarify whether states, or entities 

acting with or on behalf of states, would 

be exempt from the requirement to 

submit PCNs when operating under the 

Surface Transportation Block Grant 

Program, which allows states to 

implement road projects and other 

projects using federal money with some 

amount of regulatory oversight by the 

Federal Highways Administration. A 

couple commenters suggested that if the 

Corps does not require PCNs for 

activities undertaken federal permittees, 

the PCN requirements for all applicants 

could be included as regional 

conditions to the NWPs. The Corps is 

retaining the PCN requirements for 

federal permittees, therefore it declines 

to speculate on how it would have 

implemented the proposal. 

One commenter suggested modifying 

the PCN exemption to only encompass 

federal, state, or local agencies that have 

established their credentials for 

application of the NWP program. One 

commenter suggested an exemption 

from PCN requirements for federal 

permittees when pre-construction 

notification is required solely as a result 

of federal consultation thresholds noted 

in the NWP general conditions. One 

commenter suggested there would be a 

benefit in including a statement 

clarifying that state transportation 

agencies with NEPA delegation are the 

federal leads in terms of ESA Section 7 

and NHPA 106 compliance. One 

commenter stated that most DOTs strive 

for consistency and implement NEPA 

requirements on all projects, which 

ensures compliance with federal 

regulations and allows previously nonVerDate Sep<11>2014 18:34 Jan 12, 2021 Jkt 253001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2
2758 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

federal aid projects to become federal 

aid projects when additional federal 

funds become available. One commenter 

suggested that if this proposal is 

enacted, the Corps should provide 

specific standards for professional 

qualifications similar to 36 CFR part 61, 

Appendix A. The Corps is retaining the 

PCN requirements for federal 

permittees, so it declines to speculate on 

how it would implement the proposal. 

One commenter stated that to the 

extent there is a perception of delay 

caused through federal administrative 

shortfalls and backlogs, a greater level of 

funding for Corps staff and offices 

would be a better investment in 

reducing perceived delays. This 

commenter said that exchanging one 

federal staff funding shortfall for 

another agency with less expertise 

would not produce a net gain in 

permitting efficiency while complying 

with the duty to authorize only those 

impacts that will have minimal adverse 

effects on the environment. One 

commenter suggested that the Corps 

evaluate whether a PCN requirement 

should be based on qualifications rather 

than the federal status of a permittee. 

This commenter said that an audit 

process could be implemented to verify 

past and continued quality of the 

applicant’s work. One commenter 

suggested the Corps focus on how to 

improve staff training and the 

mechanics of the PCN process so that it 

is completed in a reliable, transparent, 

and effective manner within the 

designated time frames. The Corps is 

retaining the PCN requirements for 

federal permittees, so these concerns 

have been addressed. 

E. Comments on 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 environment and are not 

contrary to the public interest. 

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 

(WQC) and Coastal Zone Management 

Act (CZMA) 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 finalization of the issued, 

reissued, or modified NWPs. 

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 that a 

specific condition in a water quality 

certification issued for the issuance of 

an NWP does not comply with 40 CFR 

121.7(d)(2). If the district engineer 

makes such a determination, then he or 

she will consider that condition waived 

under 40 CFR 121.9(b) after written 

notice is provided to EPA and the 

certifying authority consistent with 40 

CFR 121.9(c). For more information on 

compliance with Section 401 of the 

CWA, refer to Section III.G. 

For CZMA consistency concurrences 

issued by a state for the issuance of an 

NWP, 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, all district engineers 

issue local public notices to advertise 

the availability of the proposed rule in 

the Federal Register 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)). 

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 to 

solicit public comment on those 

proposed regional conditions, usually 

for a 45-day comment period. Those 

public notices also solicit 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 generally issued 

shortly after Corps Headquarters 

publishes the proposed NWPs in the 

Federal Register. 

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) for each NWP. Each 

supplemental document will evaluate a 

specific 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 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2759 

Corps district, especially in cases where 

the geographic area of responsibility for 

the Corps district covers an entire state. 

The supplemental documents may cover 

a state when there is more than one 

Corps district in the state, and the lead 

Corps district for that state is 

responsible for preparing the 

supplemental documents. 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 on its website 

announcing the final Corps regional 

conditions and when those regional 

conditions go into effect (see 33 CFR 

330.5(c)(1)(v)). 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 formal 

role in the development and approval of 

Corps’ regional conditions by division 

engineers. However, 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. 

When a state, authorized tribe, or EPA 

issues a WQC for the issuance of an 

NWP and that WQC includes 

conditions, those conditions become 

conditions of the NWP authorization, 

unless one or more conditions is waived 

because they do not meet the criteria at 

40 CFR 121.7(d)(2). The processes for 

states, approved tribes, and EPA to issue 

WQCs for the issuance of the NWPs, are 

separate from the Corps’ regional 

conditioning process under 33 CFR 

330.5(c), and are governed by state, 

tribal, or EPA, regulations. The Corps’ 

current regulations for water quality 

certification for the NWPs are found at 

33 CFR 330.4(c), and those regulations 

provide a process for WQC conditions 

becoming conditions of the NWPs when 

WQCs are issued for the NWPs before 

the NWPs are issued by Corps 

Headquarters. 

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 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 

Department of Commerce regulations. 

When the final WQCs and CZMA 

consistency concurrences are issued, 

District and division engineers will 

review those WQCs and CZMA 

consistency concurrences and 

determine which conditions become 

conditions for the final NWPs. Division 

engineers will then 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. The Corps 

will post copies of the district public 

notices announcing the final Corps 

regional conditions and final WQC/ 

CZMA conditions in the regulations.gov 

docket (docket number COE–2020– 

0002), under ‘‘Supporting and Related 

Material.’’ 

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 publicly available. To 

further improve the nationwide 

transparency of the regional 

conditioning process, the Corps is 

considering revising the regulations 

governing the regional conditioning 

process at 33 CFR 330.5(c). Specifically, 

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. Even though 

such changes were outside the scope of 

this action, the Corps solicited public 

comment on whether to implement this 

or a similar requirement relating to the 

regional conditioning process and any 

factors we should consider in a future 

rulemaking. While the comments relate 

to matters that were outside the scope 

of this action, the Corps appreciates the 

helpful suggestions it received from the 

public. The Corps will consider them as 

we continue to examine whether 

changes may be necessary to the 

regulations governing the regional 

conditioning process. 

Several commenters said that regional 

conditions are excessive and/or 

unnecessary. Several commenters 

requested that Corps Headquarters 

review and concur with regional 

conditions before they are finalized. A 

few commenters said that regional 

conditions may be appropriate in some 

cases in specific areas of the country. A 

few commenters said that rationale and 

justification for regional conditions 

should be made available to the public. 

A few commenters recommended that 

Corps Headquarters provide detailed 

2760 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

guidance to district offices regarding 

how to develop regional conditions. A 

few commenters said that Corps 

districts are inconsistent on how they 

create regional conditions. A couple of 

commenters said that current regional 

conditions should not change. One 

commenter said that regional conditions 

should be specific to watersheds or 

ecoregions and not differ between 

districts. 

The Corps believes that regional 

conditions are necessary to tailor the 

NWPs on a regional basis to ensure that 

the NWPs authorize only those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. Under the Corps’ 

current regulations at 33 CFR 330.5(c), 

division engineers have the authority to 

add regional conditions to the NWPs 

and Corps Headquarters has no role in 

that approval process. The 

supplemental documents division 

engineers prepare for adding regional 

conditions to the NWPs require 

consideration of the comments received 

on the district’s public notices on the 

proposed regional conditions and a 

statement of findings showing how 

substantive comments were considered 

by the division engineer (see 33 CFR 

330.5(c)(1)(iii)). Regional conditions do 

not need to be consistent across 

districts, among divisions, or nationally 

because they are intended to address 

specific regional issues or concerns for 

the aquatic environment or any of the 

Corps’ public interest review factors. If 

regional conditions are specific to 

watersheds, differences in regional 

conditions among districts are 

inevitable because different watersheds 

are likely to have different resource 

concerns and different factors affecting 

what adverse environmental effects 

might be considered more than 

minimal. 

One commenter stated that Corps 

districts should be able to develop and 

identify appropriate regional conditions. 

One commenter said that the proposed 

changes to regional conditions will 

remove coordination processes with 

state partners. One commenter remarked 

that the proposed changes will result in 

a disproportionate impact to floodplains 

and flood-prone areas. One commenter 

said that the regional conditions for 

NWPs 12, C, and D should be the same 

in each region. One commenter stated 

that there is inconsistency between 

whether or not Corps districts consider 

oil and gas natural pipelines as utility 

lines in regional conditions. 

Corps districts identify regional 

conditions, and make recommendations 

to division engineers. The approval 

authority for regional conditions lies 

with the division engineer (see 33 CFR 

330.5(c)). Regional conditions can 

provide for coordination with state 

partners, and that coordination may be 

removed as regional conditions are 

considered for a new set of NWPs. The 

Corps does not have the authority to 

regulate floodplains and flood-prone 

areas per se. The Corps has the authority 

to regulate discharges of dredged or fill 

material into waters of the United 

States, and those waters and proposed 

discharges may be located in 

floodplains or flood-prone areas. Having 

identical regional conditions for NWPs 

that authorize utility line activities 

would be contrary to the intent of 

regional conditions, which is to address 

regional differences in aquatic resources 

and ensure that the NWPs authorize 

only those activities that result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. Oil and natural gas pipelines are 

a type of utility line and regional 

conditions are intended to address 

specific resource concerns. 

One commenter said that regional 

conditions should include 

programmatic compliance with other 

federal laws. One commenter stated that 

regional conditions should be used to 

require in-kind mitigation and adopt 

impact and mitigation thresholds or 

associated methodologies. One 

commenter said that regional conditions 

should be developed to provide 

additional protection for species of 

concern and cultural/historical sites. 

One commenter asserted that regional 

conditions should be developed to 

require tribal consultation for every 

permit. One commenter said that 

regional conditions should prohibit 

work during spawning period for fish of 

cultural concern or which would 

jeopardize wild rice beds. 

Regional conditions may be helpful in 

ensuing programmatic compliance with 

other federal laws. Regional conditions 

can also be used to specify mitigation 

requirements for the NWPs. Regional 

conditions can help provide protection 

for listed species, historic properties, 

and cultural resources, often by adding 

PCN requirements to help ensure that 

required consultations for those 

resources are undertaken. Decisions on 

whether and how to consult with tribes 

on proposed NWP activities are made 

on a case-by-case basis by district 

engineers. Regional conditions may add 

time-of-year restrictions on authorized 

activities to ensure that those activities 

have no more than minimal adverse 

effects on fish spawning or rice beds. 

Several commenters requested greater 

transparency in the process of 

establishing regional conditions, saying 

that public notices, rationales for 

regional conditions, and comments 

received on proposed regional 

conditions should be available on 

separate dockets at 

www.regulations.gov. Several 

commenters requested revisions to 

governing regulations to require posting 

of any proposed additions of, changes 

to, or revocations of regional conditions 

in separate dockets on 

www.regulations.gov. Several 

commenters requested that the Corps 

create and maintain a single, national 

website where all proposed and final 

regional conditions can be viewed. The 

Corps will consider these comments 

when it prepares the next rulemaking 

for the issuance of NWPs. 

A few commenters said that public 

notice processes for regional conditions 

should be consistent between districts. 

A few commenters stated that districts 

are inconsistent and limit comment by 

requiring subscriptions to respective 

mailing lists rather than publishing 

notices in the Federal Register or on 

www.regulations.gov. One commenter 

said that public notices for regional 

conditions should be published in the 

Federal Register. Two commenters 

asked for the same level of written 

justification for adoption of regional 

conditions that is required to reissue or 

modify the NWPs. One commenter said 

that publication of these documents on 

separate web pages or dockets is 

redundant and unnecessary. One 

commenter stated that that comments 

received on regional conditions should 

be posted to a web page. One 

commenter stated that the Corps 

analyses for regional conditions do not 

satisfy statutory requirements. Two 

commenters said that it is difficult to 

find public notices or regional 

conditions on district web pages. 

The public notice process for regional 

conditions is consistent among all Corps 

districts, because the public notice 

process is described in the Corps’ 

regulations at 33 CFR 330.5(c)(1). The 

current regulations governing the 

regional conditioning process relies on 

public notices, and does not include 

provisions requiring the publication of 

notices in the Federal Register. During 

the next rulemaking process for the 

NWPs, the Corps will decide whether to 

use www.regulations.gov for managing 

and posting public comments received 

on proposed regional conditions. Each 

Corps district is responsible for 

managing its own web pages, and 

regional conditions apply to a particular 

Corps district, so it is appropriate for 

Corps districts to post public notices for 

regional conditions proposed for their 

districts on their web pages. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2761 

F. Comments on Proposed Removal of 

the 300 Linear Foot Limit for Losses of 

Stream Bed 

In the proposed rule, the Corps 

proposed to remove the 300 linear foot 

for losses of stream bed from NWPs 21 

(Surface Coal Mining Activities), 29 

(Residential Developments), 39 

(Commercial and Institutional 

Developments), 40 (Agricultural 

Activities), 42 (Recreational Facilities), 

43 (Stormwater Management Facilities), 

44 (Mining Activities), 50 (Underground 

Coal Mining Activities), 51 (Land-Based 

Renewable Energy Generation 

Facilities), and 52 (Water-Based 

Renewable Energy Generation Pilot 

Projects). All of these NWPs have a 1⁄2- 

acre limit for losses of non-tidal waters 

of the United States, including non-tidal 

wetlands and non-tidal streams. With 

the exception of NWPs 43 and 51, these 

NWPs require pre-construction 

notification for all activities. 

Nationwide permit 43 does not require 

PCNs for maintenance of existing 

stormwater management facilities, as 

long as those maintenance activities are 

limited to restoring the original design 

capacities of the stormwater 

management facility or pollutant 

reduction green infrastructure feature. 

Nationwide permit 51 does not require 

PCNs for activities that result in the loss 

of 1⁄10-acre or less of waters of the 

United States. Therefore, district 

engineers will review all proposed 

activities for these on a case-by-case 

basis, except for the NWP 43 and 51 

activities identified above. When 

reviewing these PCNs, district engineers 

apply the 10 criteria in paragraph 2 of 

Section D, District Engineer’s Decision, 

to determine whether the proposed 

activities will result in no more than 

minimal individual and cumulative 

adverse environmental effects. 

In the proposed rule, the Corps 

presented a number of reasons for these 

proposed changes to NWPs 21, 29, 39, 

40, 42, 43, 44, 50, 51, and 52. The Corps’ 

rationale comprises four categories of 

considerations: (1) 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; (2) 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., 

jurisdictional wetlands, streams, ponds, 

and other non-tidal waters); (3) 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 

jurisdictional wetlands, streams, and 

other types of non-tidal jurisdictional 

waters, and NWP authorization for 

losses of jurisdictional stream bed that 

have no more than minimal individual 

and cumulative adverse environmental 

effects; and (4) using acres or square feet 

(i.e., an area-based metric) 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. 

After reviewing the comments 

received in response to the proposed 

rule, for the reasons discussed below the 

Corps has decided to remove the 300 

linear foot limit for losses of stream bed 

from the 10 NWPs listed above. The 

comments received in response to the 

proposed rule are summarized below. 

The Corps’ responses to those comments 

are also provided along with the 

comment summaries. 

Retaining the 1⁄2-acre limit for losses 

of non-tidal jurisdictional waters and 

wetlands in these 10 NWPs while 

removing the 300 linear foot limit for 

losses of stream bed will help further 

Congressional intent with respect to 

Section 404(e) of the Clean Water Act 

when that provision was enacted into 

law in 1977. Section 404(e) authorizes 

the Corps to issue, after notice and 

opportunity for public hearing, general 

permits on a state, regional, or 

nationwide basis for any category of 

activities involving discharges of 

dredged or fill material if the Corps 

determines that the activities in such 

category are similar in nature, will cause 

only minimal adverse environmental 

effects when performed separately, and 

will have only minimal cumulative 

adverse effect on the environment. 

Section 404(e) does not prescribe any 

particular approaches for ensuring that 

activities authorized by general permits 

result in no more than minimal 

individual and cumulative adverse 

environmental effects, thus the Corps 

developed the PCN process and 

provided division and district engineers 

with the authority to modify, suspend, 

or revoke NWP authorizations on a 

regional or activity-specific basis after 

the NWPs are issued by Corps 

Headquarters. General permits provide a 

process for authorizing, with minimal 

paperwork and delays, activities that 

have no more than minimal individual 

and cumulative adverse environmental 

effects. General permits are an 

important tool for the Corps managing 

its personnel and workload so that it 

can focus its efforts on evaluating 

permit applications for proposed 

activities that have the potential to 

cause more than minimal adverse 

environmental effects. 

Removing the 300 linear foot limit for 

losses of stream bed under these 10 

NWPs provides equivalent quantitative 

limits for all categories of non-tidal 

jurisdictional waters, including nontidal ‘‘tributaries,’’ ‘‘lakes, ponds, and 

impoundments of jurisdictional 

waters,’’ and ‘‘adjacent wetlands’’ (see 

33 CFR 328.3(a)). These non-tidal waters 

will continue to be subjected to the 1⁄2- 

acre limit for losses of non-tidal waters. 

Except for NWPs 43 and 51, these NWPs 

require PCNs for all authorized 

activities, and district engineers will 

review these PCNs to determine which 

activities can be authorized by an NWP 

and which activities should require 

individual permits. When reviewing a 

PCN, the district engineer has the 

authority to exercise discretionary 

authority to modify, suspend, or revoke 

the NWP authorization (see 33 CFR 

330.1(d)). When a district engineer 

reviews a PCN, and if she or he 

determines that the proposed activity 

would have more than minimal 

individual or cumulative net adverse 

effects on the environment or otherwise 

may be contrary to the public interest, 

he or she will either modify the NWP 

authorization to reduce or eliminate 

those adverse effects, or instruct the 

prospective permittee to apply for a 

regional general permit or an individual 

permit (§ 330.1(d)). To determine 

whether a proposed NWP activity will 

result in no more than minimal 

individual and cumulative adverse 

environmental effects, the district 

engineer will apply the 10 criteria in 

paragraph 2 of Section D, District 

Engineer’s decision. 

Those ten criteria 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 an 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 

2762 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

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. 

If an appropriate functional assessment 

method is available and practicable to 

use, that assessment method may be 

used by the district engineer to help 

determine whether the proposed 

activity will result in no more than 

minimal adverse environmental effects. 

The removal of the 300 linear foot 

limit for losses of stream bed will help 

increase administrative efficiency by 

providing a mechanism to authorize, 

through the NWP Program activities that 

result in the loss of greater than 300 

linear feet of jurisdictional stream bed, 

but less than 1⁄2-acre of non-tidal 

jurisdictional waters. Under the 2017 

NWPs, filling or excavating more than 

300 linear feet of a perennial stream bed 

requires an individual permit even 

under circumstances where the loss of 

the stream bed would result in no more 

than minimal individual and 

cumulative adverse environmental 

effects. Under this final rule, district 

engineers would review PCNs for 

proposed losses of jurisdictional stream 

bed (plus any other losses of non-tidal 

waters of the United States) that are less 

than 1⁄2-acre and determine whether 

those proposed activities can be 

authorized by one of these 10 NWPs. If, 

for a particular PCN, the district 

engineer determines that the individual 

and cumulative adverse environmental 

effects would be more than minimal, he 

or she will exercise discretionary 

authority and require an individual 

permit. This approach provides 

administrative efficiency by providing a 

mechanism for district engineers to 

distinguish which proposed activities 

should be authorized by an NWP versus 

which activities should require 

individual permits with a public notice 

and comment process and activityspecific evaluations under NEPA, the 

public interest review, and the Clean 

Water Act section 404(b)(1) Guidelines. 

This approach also adds efficiency in 

terms of reducing processing times and 

paperwork for proposed activities that 

have no more than minimal adverse 

environmental effects and that are likely 

to generate few, if any, public or agency 

comments in response to a public notice 

for an individual permit application. 

When more activities that result in no 

more than minimal adverse 

environmental effects can be authorized 

by an NWP, there can be more staff and 

other resources for Corps districts to 

devote to undertaking other tasks, such 

as the review and approval of mitigation 

banks and in-lieu fee programs and 

overseeing their operation, conducting 

compliance actions to ensure that 

authorized activities are being 

conducted in accordance with the terms 

and conditions of their DA 

authorizations, and conducting 

approved and preliminary jurisdictional 

determinations that help project 

proponents plan and design their 

proposed projects to avoid and 

minimize impacts to jurisdictional 

waters and wetlands. 

Another benefit of removing the 300 

linear foot limit for losses of 

jurisdictional stream bed and shifting 

the quantification of losses of 

jurisdictional stream bed towards the 

1⁄2-acre limit for losses of non-tidal 

waters of the United States is more 

accurate accounting of the impacts of 

activities authorized by these 10 NWPs. 

The discharges of dredged or fill 

material authorized by these NWPs 

occur over an area of a river or stream 

bed and also may include impacts to 

other aquatic resources such as 

wetlands or open water areas (e.g., lakes 

or ponds). The discharge to a river or 

stream has a length and a width, and the 

width can vary depending on the 

physical characteristics of the impact 

area, the type of activity being 

conducted (e.g., bank stabilization, 

channel excavation, channel 

realignment), and other factors. To be 

regulated under Section 404 of the 

Clean Water Act, a discharge of dredged 

material involves any addition, 

including redeposit other than 

incidental fallback, of dredged material, 

including excavated material, into 

waters of the United States that is 

incidental to any activity, including 

mechanized land clearing, ditching, 

channelization, or other excavation (see 

33 CFR 323.2(d)(1)(iii)). A regulated 

discharge of fill material involves the 

addition of fill material into waters of 

the United States that has the effect of 

either replacing any portion of a water 

of the United States with dry land or 

changing the bottom elevation of any 

portion of a water of the United States 

(see 33 CFR 323.3(e) and (f)). The direct 

impacts of these activities are most 

accurately quantified on an area basis, 

not a linear basis, to inform a district 

engineer’s decision on whether a 

proposed activity should be or is 

authorized by an NWP and to track 

cumulative impacts. 

Accurate quantification of stream bed 

losses authorized by an NWP is an 

important component of determining 

whether a proposed NWP activity will 

result in no more than minimal 

individual adverse environmental 

effects. (See item 1 above from 

paragraph 2 of Section D, District 

Engineer’s Decision: Understanding 

‘‘the direct and indirect effects caused 

by the NWP activity.’’) Accurate 

quantification of stream bed losses is 

also important for tracking cumulative 

impacts of activities authorized by an 

NWP, both on a national and regional 

basis, and for determining whether a 

particular NWP activity will contribute 

to more than minimal cumulative 

adverse environmental effects. (See item 

2 of paragraph 2 of the District 

Engineer’s Decision: ‘‘The cumulative 

adverse environmental effects caused by 

activities authorized by an NWP and 

whether those cumulative adverse 

environmental effects are no more than 

minimal.’’) 

As discussed in the 2020 Proposal (85 

FR 57316), discharges of dredged or fill 

material into jurisdictional streams can 

cause losses of stream bed along only a 

portion of the stream bed (e.g., bank 

stabilization projects that involve 

discharging fill along the edge of the 

stream, with no fill in the rest of the 

stream bed) or across the entire stream 

bed (e.g., excavating the stream bed to 

mine aggregates) along a stream reach. A 

wide variety of activities involving 

filling or excavating stream bed may be 

authorized by these NWPs, such as bank 

stabilization, channel realignment, 

culvert installation or replacement, 

stream channel restoration, the 

installation of grade control structures 

(e.g., rock), fills for footings for bridges, 

livestock crossings, utility line 

crossings, and temporary fills for 

construction and access. Quantifying 

losses of stream bed in linear feet does 

not distinguish between filling or 

excavation activities that occur only in 

a portion of the stream bed along an 

ordinary high water mark versus filling 

or excavation activities that occur in the 

entire stream bed, from ordinary high 

water mark to ordinary high water mark. 

Accurate quantification of losses of 

stream bed and losses of other types of 

jurisdictional waters and wetlands is 

also important for monitoring and 

evaluating the cumulative adverse 

environmental effects caused by NWP 

activities. In response to the 2020 

Proposal, numerous commenters 

criticized the Corps’ assessment of 

cumulative effects for the NWPs. An 

essential step in conducting a 

cumulative effects analysis for an NWP 

is estimating how many times that NWP 

may be used during the period the NWP 

is in effect, the quantity of jurisdictional 

waters and wetlands that may be lost or 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2763 

directly altered by the activities 

authorized by that NWP, whether those 

losses or alterations are permanent or 

temporary, and what, if any 

compensatory mitigation is being used 

to offset those losses. The Corps 

provides those estimates in its national 

decision documents, and those 

estimates are more robust if they use a 

common metric, so that it is possible to 

calculate total losses and offsets during 

the period the NWP is in effect. 

Division engineers have discretionary 

authority to modify, suspend, or revoke 

NWP authorizations on a regional basis 

(33 CFR 330.5(c)) to help ensure that the 

NWPs are only used to authorize 

activities that have no more than 

minimal individual and cumulative 

adverse environmental effects. For 

example, if a Corps district determines, 

in a particular watershed, county, Corps 

district, or other geographic region, that 

cumulative losses of stream bed 

authorized by NWPs may be 

approaching a level that might exceed 

the ‘‘no more than minimal cumulative 

adverse environmental effects’’ 

threshold, the Corps district can request 

that the division engineer modify, 

suspend, or revoke the relevant NWP 

authorizations in that region. The 

division engineer can add regional 

conditions to the appropriate NWPs to 

restrict or prohibit their use in 

particular categories of waters, or 

suspend or revoke the NWP 

authorization so that those NWP(s) can 

no longer be used to authorize regulated 

activities in that geographic region. The 

division engineer’s authority to modify, 

suspend, or revoke NWP authorizations 

on a regional basis can also be used to 

sort out which activities can be 

authorized by an NWP versus which 

activities should require individual 

permits. 

District engineers have discretionary 

authority to modify, suspend, or revoke 

NWP authorizations on a case-specific 

basis (see 33 CFR 330.5(d)) to help 

ensure that NWPs are only used to 

authorize specific activities that have no 

more than minimal individual and 

cumulative adverse environmental 

effects. A district engineer can add 

conditions to an NWP authorization to 

reduce potential adverse environmental 

effects that might be caused by a 

proposed NWP activity, such as 

mitigation requirements to avoid or 

minimize direct and indirect effects 

caused by that activity. One example is 

a time of year restriction to prevent 

discharges of dredged or fill material 

from occurring during spawning seasons 

for fish or other aquatic organisms. 

Another example of a permit conditions 

to help reduce adverse environmental 

effects caused by an NWP activity might 

be to require the use of certain best 

management practices. A district 

engineer might also add permit 

conditions to the NWP authorization to 

require compensatory mitigation to 

offset losses of waters of the United 

States caused by the NWP activity. 

As the Corps implements this final 

rule, it will continue to rely on these 

administrative tools that have long been 

used with these 10 NWPs to help ensure 

that authorized activities will result in 

no more than minimal individual and 

cumulative adverse environmental 

effects. Those tools are the 1⁄2-acre limit 

for losses of non-tidal waters of the 

United States, the pre-construction 

notification requirements and associated 

activity-specific review by district 

engineers, the regional conditions that 

can be added by division engineers, and 

the activity-specific conditions that can 

be added by district engineers when 

reviewing individual PCNs. 

The proposal was made in accordance 

with the recommendations in the report 

issued by the Office of the Assistant 

Secretary of the Army (Civil Works) in 

response to E.O. 13783 on ways to 

streamline the NWPs. In the proposed 

rule, the Corps invited public comment 

on the proposal to remove the 300 linear 

foot limit and to rely on the 1⁄2-acre 

limit, the PCN process, the proposed 

modification of the ‘‘mitigation’’ general 

condition (general condition 23), and 

other tools to comply with the statutory 

and regulatory requirement that 

activities authorized by an NWP must 

result in no more than minimal 

individual and cumulative adverse 

environmental effects. The Corps also 

invited comment on whether there are 

situations where quantifying losses of 

stream bed in linear feet might more 

accurately represents the actual amount 

of stream bed filled or excavated as a 

result of an NWP activity and would 

result in more defensible determinations 

on whether a proposed NWP activity 

will result in no more than minimal 

individual and cumulative adverse 

environmental effects. In the proposed 

rule, the Corps asked commenters to 

provide information that would help 

illustrate or explain how and under 

what circumstance using a linear foot 

measure to quantify losses of stream bed 

would be more accurate than using 

square feet or acres to quantify the 

amount of authorized impacts. 

The Corps also invited comment on 

the legal, regulatory, policy, or scientific 

bases for imposing different numeric 

limits on jurisdictional stream bed 

losses versus losses of non-tidal 

jurisdictional wetlands or other types of 

non-tidal jurisdictional waters. 

Commenters were encouraged to 

provide supporting information in the 

form of citations to laws, regulations, 

and policies, and the scientific 

literature, because substantive 

information would be valuable in 

assisting the Corps in preparing the final 

NWPs. 

The Corps also requested comment on 

an alternative hybrid approach to 

establishing consistent quantitative 

limits for losses of stream bed 

authorized by NWPs 21, 29, 39, 40, 42, 

43, 44, 50, 51, and 52. Under the 

proposed hybrid approach, losses of 

stream bed would continue to be 

quantified in linear feet as long as the 

activities authorized by these NWPs 

would result only in the loss of stream 

bed. There would be linear foot limits 

for losses of stream bed by stream order 

identified using the Strahler (1957) 

method, and the mean stream widths 

identified by Downing et al. (2012). If a 

proposed NWP activity would result in 

the loss of jurisdictional stream bed plus 

other types of waters of the United 

States, such as non-tidal jurisdictional 

wetlands, the losses of waters of the 

United States would be quantified in 

acres and subjected to the 1⁄2-acre limit. 

In the preamble to the proposed rule, 

the Corps provided a table for the 

hybrid approach (see 85 FR 57321). A 

critical component of effectively 

applying the hybrid approach is 

identifying the correct stream order for 

the stream segment that is proposed to 

be filled or excavated as a result of the 

proposed NWP activity. In this hybrid 

approach, the linear foot limits would 

only apply to losses of stream bed. If a 

proposed NWP activity would result in 

a combination of losses of jurisdictional 

stream bed and other types of waters of 

the United States, such as non-tidal 

jurisdictional wetlands, then the 1⁄2-acre 

limit would apply to the combined 

losses of stream bed and non-tidal 

wetlands, to keep those losses below 1⁄2- 

acre. 

In conjunction with the proposal to 

remove the 300 linear foot limit for 

losses of stream bed, the Corps proposed 

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 federal 

2764 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

district 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 features, 

including ephemeral streams, are 

categorically excluded from jurisdiction 

under the Clean Water Act (see 33 CFR 

328.3(b)(3)). 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 III.C, for more 

discussion on the potential impact of 

the Navigable Water Protection Rule on 

the NWPs. 

In addition, the Corps proposed 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 ‘‘preconstruction 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 needed 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.’’ See 33 CFR 

328.3(b)(3). 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. 

Many commenters opposed the 

removal of the 300 linear foot limit for 

losses of stream bed. Many commenters 

supported the proposed change, stating 

that calculating losses of stream bed in 

acres is a more accurate measure of 

those losses since acreage takes both the 

length and width of the stream channel 

into account when determining the 

amount of stream bed filled or 

excavated by an NWP activity. Several 

commenters in favor of the proposed 

change expressed concern with how this 

change would affect mitigation banks 

and credit calculations for future and 

past permits. Several commenters 

believed this change would continue to 

ensure that the activities authorized by 

these NWPs would result in no more 

than minimal impacts. 

As discussed above, the Corps is 

removing the 300 linear foot limit for 

losses of stream bed from NWPs 21, 29, 

39, 40, 42, 43, 44, 50, 51, and 52 for the 

reasons discussed in this final rule to 

increase the efficiency of the NWP 

program, utilize a metric that more 

accurately reflects the amount of 

impact, and to allow NWP authorization 

of losses of stream bed where district 

engineers determine that those losses 

would have no more than minimal 

adverse environmental effects after 

reviewing PCNs. Quantifying losses of 

stream bed in acres or square feet will 

be more accurate, provide a more 

substantial and defensible basis for 

decision-making by district engineers on 

PCNs for these activities, and provide 

more accurate data for the Corps to track 

cumulative impacts of the activities 

authorized by these NWPs. The removal 

of the 300 linear foot limit will not 

affect the ability of district engineers to 

require compensatory mitigation or 

other forms of mitigation for losses of 

stream bed. In addition, it should not 

have a substantial effect on mitigation 

banks that have already been approved 

and mitigation banks that may be 

approved in the future. Depending on 

how existing mitigation banks quantify 

the credits they produce, there may 

have to be some technical changes in 

how credit transactions occur between 

mitigation bank sponsors and 

permittees, to determine the appropriate 

number of stream credits that are 

needed to offset a permitted loss of 

stream bed. 

A few commenters supported the 

removal of the 300 linear foot limit 

because the district engineer retains the 

ability to exercise discretionary 

authority to require individual permits 

if the adverse environmental effects 

caused by a proposed activity would be 

more than minimal. These commenters 

also said they support the removal of 

the 300 linear foot limit as long as Corps 

divisions and districts can continue to 

develop and use regional conditions in 

districts that have specific resource 

concerns. 

The PCN process is an administrative 

tool that helps ensure that activities 

authorized by NWPs cause no more than 

minimal individual and cumulative 

adverse environmental effects, by 

providing activity-specific review of 

these activities by district engineers 

before they are authorized by an NWP. 

The 1⁄2-acre limit is another tool that 

helps ensure that activities authorized 

by these NWPs have no more than 

minimal adverse environmental effects. 

In geographic areas where there are 

concerns about cumulative losses of 

headwater streams and the functions 

they provide, division engineers can 

add regional conditions to these NWPs 

to reduce the acreage limit from 1⁄2-acre 

to a lower acreage limit, such as 1⁄4-acre 

or 1⁄10-acre. In addition, division 

engineers can add regional conditions to 

these NWPs to lower the threshold for 

requiring stream compensatory 

mitigation from 3⁄100-acre to a different 

acreage threshold. 

Many commenters expressed 

concerns with removing the 300-linear 

foot limit on loss of stream bed for these 

NWPs, stating that this change would 

allow much larger impacts to smaller 

stream channels since they typically 

have smaller widths and therefore a 

permittee could impact a much longer 

length of stream before reaching the 1⁄2- 

acre limit. Many commenters said that 

a linear foot measurement was more 

appropriate for calculating stream 

impacts and losses than an acreagebased system because streams are 

fundamentally linear features in the 

landscape. Many commenters stated 

that the Corps has not provided any 

scientific rational or reasoning behind 

this change and even the scientific 

studies cited by the Corps were not 

interpreted appropriately. 

As discussed above, the Corps will 

rely on other, existing protective 

mechanisms within the NWPs to ensure 

that the activities authorized by these 

NWPs will result in no more than 

minimal individual and cumulative 

adverse environmental effects. Those 

tools include the 1⁄2-acre limit, the PCN 

requirements for these NWPs, and the 

ability of division and district engineers 

to further condition or restrict the 

applicability of an NWP in situations 

where they have concerns for the 

aquatic environment under the Clean 

Water Act section 404(b)(1) Guidelines 

or for any factor of the public interest 

(see 33 CFR 330.1(d)). While rivers and 

streams have a strong linear component, 

they also vary substantially in width. 

Discharges of dredged or fill material 

into waters of the United States that 

cause losses of waters of United States 

through the filling or excavation of 

stream beds occur over an area, and 

using acres or square feet to quantify 

losses of stream bed is more informative 

to determinations of minimal effects and 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2765 

accurate in data accounting than using 

linear feet. The potential losses of 

stream functions, and whether those 

losses are more than minimal, can be 

addressed through the PCN review 

process. When determining whether a 

proposed NWP activity will result in no 

more than minimal individual and 

cumulative adverse environmental 

effects, district engineers will apply the 

10 criteria in paragraph 2 of Section D, 

District Engineer’s Decision. Decisions 

regarding quantitative limits for the 

NWPs are administrative decisions 

because the legal threshold for general 

permits (‘‘no more than minimal 

individual and cumulative adverse 

environmental effects’’) is a subjective 

threshold. Applying this subjective 

threshold to complex ecological systems 

requires a district engineer to exercise 

his or her judgment as to whether that 

threshold is crossed for particular NWP 

activity. 

Another tool that the Corps added to 

this final rule to help ensure that the 

activities authorized by these NWPs will 

result in no more than minimal 

individual and cumulative adverse 

environmental effects is the addition of 

a 3⁄100-acre threshold for stream 

compensatory mitigation in paragraph 

(d) of the mitigation general condition 

(general condition 23). The 1⁄10-acre 

wetland mitigation threshold in general 

condition 23 has been effective in 

providing incentives for project 

proponents to reduce wetland losses 

well below the 1⁄2-acre limit to avoid the 

costs of providing wetland 

compensatory mitigation. As shown in 

figure 5.1 of the Regulatory Impact 

Analysis for this final rule, more than 80 

percent of losses of waters of the United 

States verified by district engineers in 

fiscal year 2018 as qualifying for NWP 

authorization were less than 1⁄10-acre. 

The losses of waters of the United States 

in figure 5.1 include losses of stream 

bed, which were quantified in acres. 

The Corps anticipates that the 3⁄100-acre 

stream compensatory mitigation 

threshold will also be an effective 

incentive to permittees to reduce losses 

of stream bed to avoid the costs of 

providing stream compensatory 

mitigation to offset losses of greater than 

3⁄100-acre of stream bed. For NWP 

activities that require PCNs, district 

engineers continue to have discretion to 

require stream compensatory mitigation 

for losses of stream bed above or below 

the 3⁄100-acre threshold in paragraph (d) 

of general condition 23. 

Several commenters also questioned 

the Corps’ use of the study by Downing 

et al. (2012), which examined stream 

channels all over the world, stating that 

stream channels may be narrower in the 

United States (citing an average width 

in the United States of 2.6 feet). Several 

commenters stated support of a hybrid 

approach in lieu of an acreage 

calculation, but were concerned about 

the variability of stream order 

classifications and the availability of 

tools to Corps districts to implement 

that approach in an effective and 

defensible manner. One of these 

commenters noted that LiDAR is not 

available in all areas of the country. 

Many commenters opposed the 

proposed ‘hybrid approach’ in the 

preamble in which stream impact limits 

would vary by stream order by applying 

a mean stream width. Some of these 

commenters asserted that a linear foot 

metric is still likely a more accurate and 

easier method since determining stream 

order is highly varied along with 

determining a stream width. 

The Corps acknowledges that the 

study by Downing et al. (2012) does not 

fully represent the variability in stream 

dimensions. One of the purposes of 

using the information in that study was 

to demonstrate how a linear foot limit 

for losses of stream bed results in 

disparate differences in the amount of 

stream bed that can be filled or 

excavated under an NWP depending on 

where an affected stream reach is 

located in a tributary network (i.e., a 

headwater stream versus a stream 

segment located further downstream in 

a watershed). In a study of headwater 

streams in North America and New 

Zealand, using field surveys of 

headwater streams instead of the 

published data and satellite imagery 

used by Downing et al. (2012), Allen et 

al. (2018) found a typical width of 1.05 

feet for headwater streams. The Corps 

agrees that the hybrid approach 

proposed in the preamble to the 2020 

Proposal would not be an efficient or 

effective approach to establishing 

quantitative limits for these 10 NWPs. 

There is not sufficiently accurate 

mapping of headwater streams in the 

United States to implement such a 

hybrid approach, and the hybrid 

approach would not take into account 

regional variability in stream 

geomorphology. The Corps does not 

agree that a linear foot metric is easier 

or more accurate than an acreage-based 

metric. The area of stream bed filled or 

excavated as a result of an NWP activity 

is already calculated by the Corps to 

record impacts to aquatic resources, and 

it represents the amount of stream bed 

lost as a result the discharges of dredged 

or fill material regulated under Section 

404 of the Clean Water Act. 

Many commenters also questioned 

how stream width was to be measured 

(ordinary high water mark to ordinary 

high water mark versus stream bed/ 

bottom) which could also produce 

variability in how an acreage limit 

would be applied. Many commenters 

recognized that the measures for small 

and large streams should be different 

but until a more appropriate metric is 

developed, acreage should not be used 

in lieu of linear feet since it would be 

inappropriate to adopt a measure that 

better represents larger stream systems 

while the overwhelming majority of 

impacts occur to smaller streams and 

are therefore better represented for the 

time being by a linear foot 

measurement. 

Stream width should be measured 

from ordinary high water mark to 

ordinary high water mark, 

perpendicular to the longitudinal 

direction of the stream channel. That is 

consistent with the definition of ‘‘stream 

bed’’ in Section F of the NWPs. 

Commenters did not suggest a more 

accurate method for quantifying impacts 

to small and large streams in their 

comments. Establishing different 

metrics for small versus large streams 

also presents challenges in terms of 

consistently determining what 

constitutes a small stream versus a large 

stream, which has the potential for 

being an arbitrary distinction and would 

add another layer of complexity to the 

NWP program. 

Many commenters noted that smaller 

stream channels provide important 

ecological functions and values and 

they provided numerous references to 

scientific studies that document the 

importance of these stream channels as 

linear systems in the landscape. Some of 

these commenters said impacts to small 

stream channels were more severe and/ 

or permanent (e.g., complete losses by 

filling entire stream reaches) and noted 

that small streams are more susceptible 

to fragmentation impacts, are harder to 

restore/mitigate, and have compounding 

effects to downstream waters when 

impacts are cumulative and more than 

minimal. Many commenters noted that, 

in general, disproportionate impacts 

already occur to these smaller order 

stream channels because it is easier 

from an engineering standpoint and 

ultimately less costly to impact them 

versus larger order stream channels, and 

that removing the 300 linear foot limit 

would provide even less incentive to 

avoid and minimize impacts to these 

important resources. 

The ecological functions of smaller 

stream channels are to be considered by 

district engineers when they review 

PCNs for proposed activities involving 

filling or excavating stream beds. When 

evaluating PCNs, district engineers 

consider the 10 criteria in paragraph 2 

2766 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

or Section D, District Engineer’s 

Decision. Those criteria include: The 

environmental setting in the vicinity of 

the NWP activity, the type of resource 

that will be affected by the NWP 

activity, the functions provided by the 

aquatic resources that will be affected 

by the NWP activity, the degree or 

magnitude to which the aquatic 

resources perform those functions, the 

extent that aquatic resource functions 

will be lost as a result of the NWP 

activity, and the importance of the 

aquatic resource functions to the region. 

Division engineers can add regional 

conditions to the NWPs to impose lower 

acreage limits or other restrictions to 

address concerns about potential losses 

of smaller stream channels and the 

functions they provide, including 

cumulative impacts to those smaller 

stream channels. The Corps 

acknowledges that, because of their size, 

smaller stream channels may be more 

susceptible to proposed development 

activities and other activities involving 

discharges of dredged or fill material 

into waters of the United States. Project 

proponents are less likely to fill larger 

stream channels because of the water 

that flows towards those larger stream 

channels, but other activities such as 

bank stabilization, excavation activities 

in the stream bed, and realigning stream 

channels may be authorized by these 

NWPs. Removing the 300 linear foot 

limit and relying on the 1⁄2-acre limit 

and PCN review process to identify 

activities that require individual permits 

helps the Corps implement its permit 

program more effectively, to efficiently 

authorize activities with no more than 

minimal adverse environmental effects 

via NWP, and focusing more of its 

resources on evaluating individual 

permit applications for activities that 

are likely have more substantial 

environmental impacts. 

Many commenters said that this 

change would allow more than minimal 

impacts because of the disproportionate 

length of impacts to headwater streams 

that would be allowed now under the 

NWP program, which is said to be 

counter to and inconsistent with the 

goal and purpose of the NWP program. 

Many commenters questioned how the 

Corps could reconcile and justify this 

change based on the long-standing 

history of the 300-linear foot limit for 

losses of stream bed in the NWP 

program. Many commenters stated that 

individual permits should be required 

for proposed impacts to more than 300 

linear feet of stream bed, to allow for the 

public and federal, state, and local 

resource agencies to comment on 

proposals to fill or excavate several 

thousand feet of stream bed. 

The Corps will be relying on other, 

existing protective mechanisms within 

the NWPs to ensure that these NWPs 

authorize only those activities that have 

no more than minimal adverse 

environmental effects. The NWP 

program has changed over time as new 

information is considered and 

alternative ways of implementing the 

program are identified to further the 

program’s objective of regulating, ‘‘with 

little, if any, delay or paperwork certain 

activities having minimal impacts’’ (33 

CFR 330.1(b)). The removal of the 300 

linear foot limit, continued application 

of the 1⁄2-acre limit, plus the ability of 

division and district engineers to 

exercise their discretionary authority to 

modify, suspend, or revoke NWP 

authorizations on a regional or case-bycase basis, respectively, will ensure that 

activities that would cause more than 

minimal adverse environmental effects 

will be evaluated through the individual 

permit process. 

Many commenters expressed concern 

about other changes within this 

proposal, when combined with the 

removal of the 300 linear feet limit 

would eliminate agency coordination 

with federal and state resource agencies 

under paragraph (d) of general condition 

32. One commenter said that when 

reviewing the number of individual 

permits issued versus activities 

authorized under NWPs that even with 

what the commenter considers the more 

stringent 300-linear foot limit in place 

there is no justifiable need for reducing 

regulatory burden since the number of 

individual permits is so small compared 

to NWP verifications and this change 

would likely not result in any 

significant decrease in number of 

individual permits or regulatory burden. 

For the 10 NWPs that had the 300 

linear foot limit for losses of stream bed, 

the agency coordination process in 

paragraph (d) of general condition 32 

was limited to requests for waivers of 

the 300 linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Ephemeral streams are not waters of the 

United States (see 33 CFR 328.3(b)(3)) 

and therefore not subject to jurisdiction 

under Section 404 of the Clean Water 

Act. In its Regulatory Impact Analyses 

for the proposed and final rules, the 

Corps acknowledges that the removal of 

the 300 linear foot limit is likely to 

result in a modest increase in NWP 

authorizations (174 per year), and a 

commensurate decrease in the number 

of activities that require individual 

permits. However, a modest reduction 

in the number of individual permits that 

must be processed each year can help 

improve administration of the Corps 

Regulatory Program and allow the Corps 

to devote more time and resources to 

working with project proponents to 

reduce the environmental impacts of 

activities that have the potential to 

result in more substantial impacts to 

jurisdictional wetlands and waters. 

Many commenters said that the 

proposed 1⁄10-acre mitigation threshold 

for losses of stream bed was not an 

adequate tool for ensuring no more than 

minimal adverse environmental effects 

based on the disproportionately large 

amount of impacts to smaller headwater 

streams that would need to occur before 

compensatory mitigation was required. 

Many commenters expressed concern 

about the potential for increased 

likelihood for out-of-kind mitigation 

being provided to offset headwater 

stream impacts if mitigation is based on 

an acreage or other area-based metric for 

losses of stream bed. These commenters 

said that out-of-kind mitigation would 

likely increase because it would be the 

only option available to permittees due 

to fewer stream credits being generated 

and available as mitigation bankers and 

other mitigation providers adapt to this 

change and the uncertainty in the 

market that this change might create. 

The comments received on the 

proposed 1⁄10-acre threshold for stream 

mitigation are discussed in the section 

of this preamble that discusses the 

comments received on general condition 

23. In response to those comments, the 

Corps reduced the threshold for stream 

mitigation from 1⁄10-acre to 3⁄100-acre. As 

explained in the discussion of general 

condition 23 below, this change in the 

stream mitigation threshold aligns with 

current practice for stream mitigation 

requirements in the NWP program, and 

the recommendations for the stream 

mitigation threshold provided by 

commenters. The Corps uses a 

watershed approach for compensatory 

mitigation (see 33 CFR 332.3(c)). The 

goal of a watershed approach is to 

maintain and improve the quality and 

quantity of aquatic resources within 

watersheds through strategic selection 

of compensatory mitigation sites (see 33 

CFR 332.3(c)(1)). A watershed approach 

considers how the types and locations 

of compensatory mitigation projects will 

provide the desired aquatic resource 

functions, and will continue to function 

over time in a changing landscape (33 

CFR 332.3(c)(2)(i)), and may involve the 

use of out-of-kind mitigation. 

Under a watershed approach, other 

approaches to stream restoration may be 

used to generate stream credits besides 

headwater stream channel 

reconfiguration projects. These other 

approaches may include process-based 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2767 

stream restoration activities such as dam 

removal, culvert replacements, levee 

setbacks or removals, riparian area 

restoration, allowing beavers to 

construct dams to aggrade incised 

channels, or installing structures that 

mimic beaver dams to aggrade incised 

channels (Beechie et al. 2010) to 

generate compensatory mitigation 

credits for activities authorized by these 

NWPs. The use of beaver dams or 

structures to aggrade incised stream 

channels may result in wetland/stream 

complexes for which an area-based 

credit metric may be more appropriate 

than a linear foot-based metric. 

Focusing on restoring stream functions 

can be more ecologically successful in 

improving stream functions than formbased restoration approaches such as 

channel reconfiguration that have had 

questionable success in restoring 

degraded streams (Palmer et al. 2014). 

The stream credits generated by channel 

reconfiguration projects in headwater 

streams can be quantified in linear feet 

or acres, because the Corps’ 

compensatory mitigation regulations do 

not mandate a specific approach for 

quantifying stream credits. Section 

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. The preamble to the 

2008 mitigation rule states that ‘‘district 

engineers retain the discretion to 

quantify stream impacts and required 

compensatory mitigation in terms of 

area or other appropriate units of 

measure’’ (73 FR 19633). 

The Corps received many comments 

and questions about how these changes 

would likely negatively affect longstanding stream mitigation accounting 

and the mitigation banking industry in 

general. These commenters said that a 

linear foot metric has always been used 

for stream assessment methodologies 

and the basis for mitigation accounting 

systems, and many commenters stated 

that changing this metric would be 

unnecessarily burdensome and costly to 

stream restoration professionals and 

likely result in fewer stream restoration 

projects. One commenter stated that the 

proposed change would not increase 

mitigation opportunities in larger or 

higher order stream channels as 

proposed since the restoration of larger 

streams is more complex than smaller 

streams and is dependent on many 

variables to include funding availability, 

site selection, engineering and design 

considerations, mitigation requirements 

associated with the project, market 

incentives, and the inability to control 

future impacts in the headwaters which 

can jeopardize the larger stream 

restoration project. 

As stated in the previous paragraphs, 

the Corps’ regulations do not require use 

of a linear foot metric for stream 

assessment methodologies or for 

quantifying stream impacts or 

compensatory mitigation credits. The 

removal of the 300 linear foot limit for 

losses of stream bed and the changes to 

general condition 23 are likely to benefit 

the mitigation banking industry by 

providing more opportunities for stream 

restoration projects that can generate 

stream credits to offset losses of stream 

bed authorized by the NWPs and other 

types of DA permits. The Corps 

acknowledges that some efforts will 

need to be made to address differences 

in accounting systems, but mitigation 

providers including mitigation bank 

sponsors and in-lieu fee program 

sponsors should be able to estimate the 

amount of stream credits quantified in 

linear feet that are needed to offset an 

specific acreage of stream bed lost as the 

result of an NWP activity. The district 

engineer can assist in these 

determinations to ensure that the 

amount of stream mitigation credits is 

roughly proportional to the authorized 

losses of stream bed. 

Several commenters said that 

establishing a stream compensatory 

mitigation threshold of 1⁄10-acre would 

allow approximately 1,675 linear feet of 

a first order stream channel with a 2.6- 

foot wide channel to be impacted under 

these NWPs before any compensatory 

mitigation would be required, which 

does not meet the Corps’ mandated goal 

of no net loss to aquatic resources and 

would cause more than minimal effects 

to these aquatic resources. 

In response to public comment, the 

Corps has modified paragraph (d) of 

general condition 23 to change the 

proposed 1⁄10-acre threshold for stream 

mitigation to 3⁄100-acre to make the 

threshold more consistent with current 

practice and the recommendations made 

by commenters. The reasons for 

changing the proposed 1⁄10-acre stream 

mitigation threshold to 3⁄100-acre are 

provided in the discussion of general 

condition 23 below. There is no 

mandated goal of no net less to aquatic 

resources in any law or regulation that 

applies to the Corps’ NWP Program. 

Compensatory mitigation, including 

stream compensatory mitigation, is 

required for NWP activities on a caseby-case basis to ensure that the 

authorized activities result in no more 

than minimal adverse environmental 

effects. District engineers determine 

when compensatory mitigation is 

required for NWP activities. In prior 

versions of the NWPs, the Corps had no 

threshold for requiring compensatory 

mitigation for losses of stream bed, so 

those commenters were referring to 

district practices. Corps districts 

determined on an activity-specific basis 

when stream mitigation is necessary for 

specific NWP activities. 

One commenter asserted that based 

on ORM2 data analyzed for stream 

channel impacts, that the proposed 1⁄10- 

acre stream compensatory mitigation 

threshold would result in the loss of an 

additional 130,000 linear feet of 

headwater streams in which no 

mitigation would be provided. Several 

commenters expressed concerns about 

how this change would affect current 

mitigation banks that were in the 

process of being approved and inquired 

whether all previously executed 

mitigation banking instruments would 

need modification to continue to 

operate and sell credits to permittees. 

One commenter said that the proper 

regulatory tool to rectify the disparity 

between stream impacts versus stream 

mitigation would be the 2008 mitigation 

rule and requiring higher mitigation 

ratios and not revision of these NWPs. 

The 2017 NWPs and prior NWPs had 

no threshold for requiring stream 

mitigation for NWP activities. The 

proposed addition of the 1⁄10-acre stream 

mitigation threshold in paragraph (d) of 

general condition 23 is a new threshold. 

That threshold has been reduced to 

3⁄100-acre in response to many 

commenters that provided calculations 

to support the reduction. Many 

commenters did not take into account 

the ability of district engineers to 

require stream compensatory mitigation 

for losses of stream bed less than the 

acreage threshold specified in paragraph 

(d) of general condition 23. This is 

similar in practice to the 1⁄10-acre 

wetland mitigation threshold in 

paragraph (c) of general condition 23, 

where district engineers also have had 

the authority to require wetland 

compensatory mitigation for wetland 

losses less than 1⁄10-acre. 

Several commenters recommended 

delaying these changes to allow for 

more time to study potential effects and 

one commenter requested that due to 

the potential for significant 

environmental effects, an environmental 

impact statement should be prepared for 

this propose change. One commenter 

said that the Corps already converts 

stream loss/impacts to acreage in their 

Regulatory Program database (ORM2) 

for accounting purposes and asked 

would the change from linear feet to 

acreage even be needed in the first 

place. Several commenters said that the 

current 300-linear foot threshold was 

2768 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

too high and should be even further 

reduced. 

The Corps is only removing a 

quantitative limit from these 10 NWPs, 

and is not changing stream 

compensatory mitigation requirements 

aside from establishing an acreage 

threshold in paragraph (d) of general 

condition 23 that is generally consistent 

with current agency practice. Under the 

waiver provision in the 2017 version of 

these 10 NWPs, district engineers could 

waive the 300 linear foot limit for losses 

of intermittent and ephemeral stream 

beds, but the loss of stream bed could 

not exceed 1⁄2-acre. Therefore, it has 

been a long-standing practice in the 

NWP program to quantify of losses of 

stream bed in acres. The removal of the 

300 linear foot limit and the change to 

general condition 23 does not require an 

environmental impact statement. As one 

commenter recognized, the Corps tracks 

losses of stream bed in its ORM2 

database in acres. 

Several commenters seemed to 

misunderstand the PCN requirements of 

these NWPs and believed that the 

proposed changes implied that no 

notification would be required for any 

losses of waters of the United States less 

than 1⁄10-acre for any of these NWPs and 

that the 1⁄10-acre mitigation threshold 

was the same as the PCN threshold. This 

misunderstanding resulted in many 

comments concerned about the Corps 

not even knowing what impacts are 

occurring if PCN thresholds are not 

triggering activity-specific review of 

these activities by district engineers, 

and stated that this change would allow 

activities with more than minimal 

adverse environmental effects to occur. 

Several commenters said that the 

rulemaking process for the NWPs in 

cases where the Corps does not review 

PCNs the authorization is automatically 

issued in some cases with no mitigation 

proposed. These commenters stated that 

not requiring PCNs could cause more 

than minimal impacts. 

The 1⁄10-acre stream mitigation 

threshold proposed in paragraph (d) of 

general condition 23 is not the same as 

the 1⁄10-acre PCN threshold in NWP 51. 

If activities are authorized by NWPs 

without the requirement to submit 

PCNs, then compensatory mitigation is 

not required for those NWP activities, 

because compensatory mitigation 

requirements must be imposed by 

district engineers by adding conditions 

to the NWP authorization. However, it 

should be noted that all activities 

authorized by these 10 NWPs require 

PCNs, except for certain activities 

authorized by NWPs 43 and 51. 

Nationwide permit 43 does not require 

PCNs for the maintenance of stormwater 

management facilities. Nationwide 

permit 51 does not require PCNs for the 

loss of 1⁄10-acre or less of waters of the 

United States. 

Many commenters said that the 

removal of the 300 linear foot limit 

would result in a loss of critical habitat 

for many aquatic species listed under 

the Endangered Species Act which have 

cultural and economic importance to 

tribes. One commenter stated that the 

removal of the 300 linear foot limit 

could result in long reaches of streams 

channels upstream of tribal lands being 

developed which could cause, without 

any notification to the affected tribes, 

downstream changes to tribal lands in 

terms of stream flow, water quality, 

subsistence of water use, or cultural 

water use. Several commenters asked 

how the tools that the Corps mentioned 

in the proposed rule as safeguards, such 

as the PCN review process, regional 

conditions, activity-specific permit 

conditions, and use of discretionary 

authority, prevent more than minimal 

adverse environmental effects. Several 

commenters oppose the proposed 

removal of the 300 linear foot limit 

because it could essentially be a ‘tipping 

point’ for a headwater stream system, 

and that there would be no way to 

recover the functions and values lost to 

that system because of approval of large 

impacts to streams. 

The removal of the 300 linear foot 

limit does not affect how compliance 

with Section 7 of the ESA is conducted 

for the NWPs. If the district engineer 

reviews a PCN for a proposed activity 

authorized by NWPs 21, 29, 39, 40, 42, 

43, 44, 50, 51, or 52, and determines 

that activity may affect listed species or 

designated critical habitat, she or he 

will conduct section 7 consultation with 

the U.S. FWS or NMFS as appropriate. 

Activities authorized by these NWPs 

must also comply with general 

condition 17, tribal rights. During the 

rulemaking process for these NWPs, 

Corps districts have been consulting or 

coordinating with tribes to identify 

regional conditions and coordination 

procedures to help ensure compliance 

with general condition 17. As discussed 

in the proposed rule, the PCN review 

process, regional conditions, and 

activity-specific conditions have been 

used successfully for years to ensure 

that activities authorized by the NWPs 

result in no more than minimal adverse 

environmental effects. Tipping points 

are difficult to identify, and if they can 

be identified, they are likely to vary 

from watershed to watershed. 

One commenter said that headwater 

streams warrant more protection 

because of their relative importance in 

providing habitat, hydrologic, and water 

quality benefits to downstream waters, 

and said that replacing a linear metric 

with an area-based metric will reduce 

protection of headwater streams. This 

commenter stated that most nutrient 

and hydrologic inputs to streams occur 

along the borders of riparian zones and 

streams, so impacts to streams should be 

quantified in linear feet. In addition, 

this commenter noted that the longer 

total stream length and higher nitrogen 

removal efficiency of lower order 

streams is the main reason stream length 

is so important to water quality and why 

headwater streams are much more 

important to water quality functions in 

stream networks than are higher order 

streams. This commenter said that 

headwater streams are being lost at high 

rates, and that more losses of these 

streams will result in increases of 

eutrophication of downstream waters, 

more downstream flooding, and more 

transportation of pollutants to 

downstream waters. This commenter 

stated that using area as a quantitative 

limit for both headwater streams and 

higher order rivers will decrease 

protection and diminish the ecological 

importance of headwater streams. This 

commenter concluded that the current 

linear foot limit is appropriate for 

streams because they are linear systems 

that interact with their landscapes along 

linear borders. 

The Corps believes that an 

appropriate level of protection can be 

provided to headwater streams through 

the 1⁄2-acre limit, the PCN process, and 

the ability of division and district 

engineers to modify, suspend, or revoke 

NWP authorizations on a regional or 

case-by-case basis, respectively. When 

reviewing PCNs, district engineers will 

apply the 10 criteria identified in 

paragraph 2 of Section D, District 

Engineer’s Decision. In regions where 

there are concerns that the use of the 

NWPs may result in more than minimal 

cumulative adverse effects to headwater 

streams and the functions they provide, 

division engineers can add regional 

conditions to these NWPs to establish 

an acreage limit lower than 1⁄2-acre or 

revoke one or more of these NWPs. 

Headwater streams are not provided any 

special status under the Corps’ 

regulations or the U.S. EPA’s Clean 

Water Act Section 404(b)(1) Guidelines. 

The only streams that are special 

aquatic sites under the 404(b)(1) 

Guidelines are riffle and pool complexes 

(see 40 CFR 230.45), and many 

headwater streams are not riffle and 

pool complexes. 

For the reasons provided above, the 

Corps has removed the 300 linear foot 

limit from NWPs 21, 29, 39, 40, 42, 43, 

44, 50, 51, and 52. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2769 

G. Response to Comments on Specific 

Nationwide Permits 

(1) NWP 12. Oil or Natural Gas Pipeline 

Activities 

The Corps proposed to modify this 

NWP to limit it to oil or natural gas 

pipeline activities, and issue two new 

NWPs to authorize electric utility line 

and telecommunications activities 

(proposed new NWP C, now designated 

as NWP 57) and utility line activities for 

water and other substances (proposed 

new NWP D, now designated as NWP 

58). The Corps also invited public 

comment on national construction 

standards and best management 

practices that could be incorporated into 

the text of NWP 12 to help ensure that 

this NWP authorizes only those 

activities (i.e., discharges of dredged or 

fill material into waters of the United 

States and/or structures or work in 

navigable waters of the United States) 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

General Comments 

Some commenters expressed their 

support for dividing NWP 12 into three 

separate NWPs while some commenters 

objected to that aspect of the proposed 

rule. Many commenters stated that the 

Corps should reissue NWP 12 in its 

current form. One commenter said that 

the 2017 NWP 12 contains sufficient 

PCN thresholds and conditions to 

provide appropriate environmental 

protections. One commenter objected to 

the proposed modifications to NWP 12 

made in response to E.O. 13783, 

Promoting Energy Independence and 

Economic Growth, stating that these 

changes would make it easier for oil and 

gas pipeline activities to occur at the 

expense of the environment. Several 

commenters said that the Corps should 

limit the number of activities authorized 

by this NWP because continuing to 

authorize these activities contributes to 

cumulative effects to natural resources. 

After reviewing the comments 

received in response to proposed NWPs 

12, C, and D, the Corps is finalizing and 

issuing these NWPs. Nationwide permit 

12 authorizes oil or natural gas pipeline 

activities, NWP 57 authorizes electric 

utility line and telecommunications 

activities, and NWP 58 authorizes utility 

line activities for water and other 

substances. These NWPs are issued to 

fulfill the objective of the NWP program, 

which is to authorize, with little, if any, 

delay or paperwork certain activities 

having no more than minimal impacts 

(33 CFR 330.1(b)). The proposed 

modifications to NWP 12 were made, in 

part, to respond to the direction 

provided by E.O. 13738, which is to 

revise existing regulations that ‘‘unduly 

burden the development of domestic 

energy resources beyond the degree 

necessary to protect the public interest 

or otherwise comply with the law.’’ In 

this NWP, the Corps has retained the 

terms and conditions that are necessary 

to ensure that the activities authorized 

by this NWP result in no more than 

minimal individual and cumulative 

adverse environmental effects. The 

Corps acknowledges that the use of the 

NWPs to authorize activities during the 

5-year period the NWP is in effect 

results in some cumulative adverse 

environmental effects, but the limits, 

PCN requirements, general conditions, 

and the ability of division and district 

engineers to modify, suspend, and 

revoke NWP authorizations all help to 

ensure that this NWP causes no more 

than minimal cumulative adverse 

environmental effects at the national, 

regional, and site scales. 

A few commenters stated that the 

proposed NWP 12 would result in 

reduced opportunities for the Corps and 

for the public to evaluate the impacts of 

oil and natural gas pipeline activities on 

water resources and the environment in 

general. One of these commenters said 

that the Corps should provide 

additional opportunities for public 

involvement. One commenter stated 

that public participation opportunities 

during the NWP permitting process are 

sufficient; and expanding the existing 

requirements at the district level would 

cause unwarranted delays in permitting. 

One commenter suggested that the 

Corps should notify the public of 

proposed NWP 12 activities. A few 

commenters said that pipelines can 

cause significant direct and indirect 

impacts to fish and wildlife habitat and 

water quality associated with an 

increase in watershed runoff. 

The public is provided an opportunity 

to comment on the Corps’ proposal to 

issue, reissue, or modify an NWP when 

Corps Headquarters publishes its 

proposed rule in the Federal Register to 

start the public comment period. 

However, after an NWP is issued, there 

is no public comment process for 

specific NWP activities. If, for a 

proposed oil or natural gas pipeline 

activity, the district engineer exercises 

discretionary authority and requires an 

individual permit for that activity, the 

public will have an opportunity to 

provide comments in response to the 

public notice issued by the Corps 

district. When reviewing PCNs for 

proposed oil or natural gas pipeline 

activities, district engineers consider the 

potential direct and indirect impacts on 

fish and wildlife habitat and water 

quality, as well as other public interest 

review factors identified in 33 CFR 

320.4(a)(1). 

One commenter said that natural gas 

pipeline activities authorized by NWP 

12 comply with industry standards that 

are protective of the environment and 

public safety. One commenter stated 

that pipelines provide a safe, reliable, 

efficient, and cost-effective way to move 

bulk liquids, particularly over long 

distances, and that the U.S. Department 

of Transportation’s Pipeline and 

Hazardous Materials Safety 

Administration concurs with that 

statement. The Corps acknowledges 

these comments. 

One commenter said that while oil or 

natural gas pipelines may be regulated 

by other agencies, the Corps is not 

relieved of its obligation to conduct a 

NEPA analysis for leaks or spills. A few 

commenters stated that the Corps must 

consider in its NEPA review the impacts 

that could result from authorizing a 

pipeline that would carry toxic material, 

including leaks or spills, and that the 

draft decision document doesn’t take 

the required ‘‘hard look’’. 

In the national decision document for 

the issuance of this NWP, the Corps 

discusses leaks or spills that may occur 

during the construction and/or 

operation of oil or natural gas pipelines. 

The Corps does not have the authority 

to take actions to prevent or control 

potential leaks or spills that may occur 

during the construction or operation of 

oil or natural gas pipelines. Since the 

Corps does not regulate the release of 

oil, natural gas, or products derived 

from oil or natural gas, it is not required 

to perform a detailed analysis of the 

effects of those possible future leaks or 

spills because those leaks or spills are 

not an effect of the Corps’ proposed 

action (see the definition of ‘‘effects or 

impacts’’ at 40 CFR 1508.1(g)). 

One commenter stated that pipeline 

abandonment issues in NWP 12 should 

be treated consistently across the 

districts and recommended that the 

NWP 12 terms should provide this 

consistency. A few commenters said 

that NWP 12 should continue to 

authorize emergency installation, 

replacement or repair of utility lines. 

One commenter requested that the 

Corps clarify the types of time-sensitive 

activities, including integrity digs, that 

are authorized under NWPs 12 and 3. 

One commenter requested clarification 

of the scope of maintenance activities 

under NWP 12. One commenter said 

that the Corps should facilitate the 

construction, repair, and/or replacement 

of climate resilient underground linear 

infrastructure to support climate 

2770 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

2https://www.eia.gov/energyexplained/oil-andpetroleum-products/ (accessed November 4, 2020). 

adaptive and resilient energy systems 

through the issuance of general permits. 

Corps districts have discretion to 

determine on a case-by-case basis how 

to address pipeline abandonment 

activities. Nationwide permit 12 can be 

used to authorize emergency 

installation, replacement or repair of 

utility lines. The reduction of the 

number of PCN thresholds for this NWP 

may facilitate the implementation of 

these emergency activities by reducing 

delays in securing NWP authorization. 

The Corps does not believe that it is 

necessary add text to the NWP to 

specifically address integrity digs, 

because discharges of dredged or fill 

material into waters of the United States 

for integrity digs can be considered part 

of maintenance, which is included in 

the first sentence of this NWP. The 

activities authorized by this NWP can 

contribute to the construction, repair, 

and/or replacement of climate resilient 

underground linear infrastructure to 

support climate adaptive and resilient 

energy systems. 

One commenter stated that the Corps 

should ensure that activities authorized 

by NWP 12 do not commence 

construction in uplands in protected 

critical habitats until the ESA section 7 

consultation process has been 

completed. A few commenters indicated 

concern that cumulative impacts are not 

adequately considered in the decision 

document for NWP 12. A few 

commenters asserted that the scope of 

the cumulative impacts has proven to be 

more than minimal. One of these 

commenters stated that the draft 

decision document for NWP 12 already 

acknowledges that the cumulative 

impacts are more than minimal. A few 

commenters said that the Corps should 

consider the cumulative upstream and 

downstream impacts of its actions 

regarding oil and natural gas pipelines, 

including climate impacts. A few 

commenters expressed concern for 

potential effects on drinking water and 

aquifers. One commenter expressed a 

general concern for waterways affected 

by NWP 12 activities. 

The Corps does not have the authority 

to prevent project proponents from 

conducting activities in uplands before 

they receive NWP verifications from 

district engineers in response to PCNs. 

The national decision documents issued 

by Corps Headquarters address 

cumulative impacts in accordance with 

the Clean Water Act Section 404(b)(1) 

Guidelines at 40 CFR 230.7 for the 

issuance of general permits. The 

Council on Environmental Quality’s 

NEPA regulation at 40 CFR 1508.1(g)(3) 

repealed the 1978 definition of 

‘‘cumulative impact,’’ so under the 

current NEPA regulations the 

cumulative effects analysis for an NWP 

is similar to the approach the Corps uses 

under 40 CFR 230.7(b)(3): Estimating 

the number of times the NWP is 

anticipated to be used during the 5-year 

period it will be in effect, the authorized 

impacts to jurisdictional waters and 

wetlands, and the compensatory 

mitigation required to offset losses of 

jurisdictional waters and wetlands. 

Those impacts, and the compensatory 

mitigation, are evaluated against the 

current environmental setting (i.e., the 

affected environment), which includes 

the past and present effects of human 

activities and natural events that have 

shaped the current environmental 

setting. The Corps does not have the 

authority to regulate the operation of 

any oil or natural gas pipeline, or the 

emissions that result from combustion 

of oil or natural gas, or from the 

industrial processes that derive other 

products from oil or natural gas. 

Therefore, under the current NEPA 

regulations, the Corps is not required to 

evaluate those upstream and 

downstream impacts, including 

potential impacts on the planet’s 

climate. The national decision 

document for this NWP considers 

effects on water supply and 

conservation as part of the public 

interest review. When reviewing PCNs, 

district engineers will evaluate the 

effects of proposed NWP activities on 

waterways. 

Activities Authorized by NWP 12 

One commenter said that the first 

sentence of NWP 12 should be revised 

as follows: ‘‘Activities required for the 

construction, replacement, 

maintenance, repair and removal of oil, 

natural gas and gaseous fuel pipelines 

and utility lines and associated facilities 

in waters of the United States, provided 

the activity does not result in the loss 

of greater than 1⁄2-acre of waters of the 

United States for each single and 

complete project.’’ The Corps declines 

to make this change because it is 

covered by the definition of ‘‘oil or 

natural gas pipeline’’ provided in the 

second paragraph of this NWP. 

Oil or natural gas pipelines. One 

commenter stated that if the Corps 

moves forward with limiting NWP 12 to 

oil or natural gas pipeline activities, it 

should also delete the phrase ‘‘including 

outfall and intake structures’’ because 

oil and natural gas pipelines and 

distribution systems do not contain 

water outfall or water intake pipe 

structures. The Corps has made this 

change to the second paragraph of this 

NWP. 

A few commenters said that the terms 

‘‘oil’’, ‘‘gas’’, and ‘‘natural gas’’, and 

‘‘petrochemicals’’ are vague and 

overbroad for the purposes of 

determining compliance with the 

proposed NWPs and can have various 

meanings, and that any proposed 

changes should be subjected to notice 

and comment procedures. A few 

commenters stated that terms associated 

with the proposed NWP 12 that require 

clarification include ‘‘utility lines,’’ 

since pipeline activities authorized by 

NWP 12 might be both pipelines and 

utility lines; ‘‘other substances,’’ 

because gas and petrochemicals can be 

found in many types of infrastructure 

and industrial products; and ‘‘gas’’ and 

‘‘natural gas,’’ because liquified 

petroleum gas is not a natural gas. 

The Corps has made changes to the 

definition of ‘‘oil or natural gas 

pipeline’’ to take into account the wide 

variety of products that may be derived 

from oil or natural gas and transported 

in these pipelines. In response to 

comments received in response to the 

2020 Proposal, and to provide 

additional clarity on the types of 

products that may be transported by oil 

or natural gas pipelines versus utility 

line activities that may be authorized by 

NWP 58, the Corps has replaced the 

term ‘‘petrochemical products’’ with the 

phrase ‘‘products derived from oil or 

natural gas, such as gasoline, jet fuel, 

diesel fuel. heating oil, petrochemical 

feedstocks, waxes, lubricating oils, and 

asphalt.’’ The revised definition was 

developed using information from the 

U.S. Energy Administration.2

A few commenters said that the 

proposed definition of ‘‘oil or natural 

gas pipeline’’ for the proposed NWP 12 

is inadequate and inconsistent with the 

definitions in the Oil Pollution Act. One 

commenter suggested the Corps add 

‘‘and derivatives’’ after ‘petrochemical 

products’ for clarity. One commenter 

suggested removal of the phrase ‘‘for 

any purpose’’ from the proposed 

definition of ‘‘oil or natural gas 

pipeline’’ because it creates uncertainty 

about what activities may actually be 

authorized by the NWP. 

The Corps developed its own 

definition because this NWP also 

authorizes regulated activities 

associated with natural gas pipelines 

and products derived from oil or natural 

gas. The Corps has deleted ‘‘for any 

purpose’’ because NWP 12 is now 

limited to oil or natural gas pipeline 

activities. 

One commenter stated that the 

existing NWP 12 uses the category 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2771 

‘‘utility lines’’ which is still used in 

proposed NWPs C and D, but the 

proposed NWP 12 uses the new term 

‘‘oil and natural gas pipelines’’ which 

causes conflicting redundancies with 

various aspects of the proposed NWPs 

12, C, and D. One commenter said that 

many of natural gas pipe construction 

and repair projects that will need NWP 

authorization involve pipelines that will 

be used to transport geologic natural gas 

as well as other lower carbon gaseous 

fuels such as renewable natural gas, 

hydrogen, and power-to-gas methanated 

hydrogen. This commenter said that to 

avoid confusion and streamline the 

process for these projects, the Corps 

should not split off any buried pipebased utility lines into the proposed 

new NWP D. One commenter remarked 

that the Corps should clarify that NWP 

12 is available for underground 

pipelines and utility lines whether they 

carry geologic natural gas or a blend 

with lower-carbon gaseous fuels. 

Nationwide permits 12, 57, 58 

authorize activities for different types of 

utility lines, so there will be some 

redundancies because of similarities 

among these different types of utility 

lines, but there are also some 

differences, which result in different 

text in each of these NWPs. Nationwide 

permit 12 authorizes oil or natural gas 

pipeline activities that may carry 

different types of natural gas. 

Nationwide permit 58 can be used to 

authorize pipeline activities that require 

DA authorization and are used to 

convey hydrogen, methanated 

hydrogen, or carbon dioxide. 

Oil or natural gas pipeline 

substations. One commenter said that 

the paragraph on substations in the 

proposed NWP 12 should be revised to 

state that it authorizes construction, 

maintenance, replacement or expansion 

work in a non-tidal jurisdictional water 

for an oil or natural gas or gaseous fuel 

custody transfer station, boosting 

station, compression station or metering 

and/or pressure regulating station. One 

commenter said that if the Corps issues 

proposed new NWP C, then the 

references to ‘‘substations’’ should be 

removed from NWP 12 and replaced 

with boosting or compressor stations 

and natural gas metering and pressure 

regulating station. This commenter also 

recommended revising the fourth 

paragraph in the proposed NWP 12 to 

state that it authorizes construction, 

maintenance, replacement or expansion 

work in a non-tidal jurisdictional water 

for an oil or natural gas or gaseous fuel 

custody transfer station, boosting 

station, compression station or metering 

and/or pressure regulating station. One 

commenter noted that the term ‘‘natural 

gas pipeline substation’’ is used in the 

proposed language for the proposed 

NWP 12 and requested clarification 

regarding how above-ground natural gas 

facilities including district regulators 

and gate stations fit into NWP 12. 

The Corps has modified this 

paragraph to provide examples of 

substations associated with oil or 

natural gas pipelines. This NWP can be 

used to authorize discharges of dredged 

or fill material into waters of the United 

States for above-ground natural gas 

facilities including district regulators 

and gate stations. 

Access roads. One commenter said 

that only temporary access roads should 

be authorized by NWP 12, and that 

permanent access roads are more 

appropriately authorized under NWP 

14. The Corps disagrees, and is retaining 

the NWP authorization for permanent 

access roads, because access roads are 

associated with utility lines are not 

usually available for public use. 

One commenter said that the proposal 

to add the word ‘‘over’’ to activities that 

are routed in or under navigable waters 

subject to Section 10 of the Rivers and 

Harbors Act of 1899 is unnecessary as 

structures routed over section 10 waters 

would be considered bridges and be 

regulated under Section 9 of the Rivers 

and Harbors Act of 1899. The Corps has 

modified the second sentence of the 

seventh paragraph of this NWP by 

adding the word ‘‘may’’ because there 

may be circumstances where section 10 

authorization is required for oil or 

natural gas pipelines routed over 

navigable waters of the United States. 

A few commenters stated that the 

Corps does not have jurisdiction over 

inadvertent returns, leaks, or spills. One 

commenter said that NWP 12 should 

continue to authorize the remediation of 

inadvertent returns of fluids during 

drilling operations without additional 

changes. A few commenters stated that 

the Corps has not sufficiently evaluated 

the risks, impacts, and mitigation 

measures associated with inadvertent 

returns of drilling fluid. A few 

commenters expressed appreciation for 

the clarification in the decision 

document that the Corps’ jurisdiction is 

limited to authorizing temporary 

structures, fills, and work necessary for 

the remediation of inadvertent returns 

of drilling fluids through sub-soil 

fissures or fractures that might occur 

during horizontal directional drilling. 

The Corps does not have jurisdiction 

over inadvertent returns, leaks, or spills 

that may occur during horizontal 

directional drilling to install or replace 

oil or natural gas pipelines. The eighth 

paragraph of this NWP authorizes, to the 

extent that DA authorization is required, 

temporary structures, fills, and work 

necessary for the remediation of 

inadvertent returns of drilling fluids to 

waters of the United States through subsoil fissures or fractures that might 

occur during horizontal directional 

drilling activities conducted for the 

purpose of installing or replacing oil or 

natural gas pipelines. The purpose of 

this paragraph is to provide 

authorization for regulated activities 

that are necessary to remediate 

inadvertent returns of drilling fluids to 

reduce adverse environmental effects 

that might be caused by releases of 

drilling fluids to the surrounding 

environment. 

One commenter expressed support for 

retaining the clarification that NWP 12 

authorizes temporary mats for moving 

equipment. A few commenters said that 

the Corps should stop considering 

temporary mats/panels as a regulated 

activity or clarify that they are not to be 

considered as a ‘‘loss of waters’’ for the 

purposes of PCN requirements because 

of their temporary effects. One 

commenter requested clarification that 

activities resulting in the loss of greater 

than 1⁄10-acre of waters of the United 

States require a PCN to the Corps, but 

temporary discharges do not count 

toward that 1⁄10-acre PCN threshold. 

The determination as to whether the 

use of timber mats in waters of the 

United States for oil or natural gas 

pipeline activities constitutes a 

discharge of dredged or fill material into 

waters of the United States should be 

made by district engineers after 

evaluating site-specific and activityspecific circumstances. Any discharge 

of dredged or fill material into waters of 

the United States that results in a loss 

of greater than 1⁄10-acre of waters of the 

United States requires pre-construction 

notification. As explained in the 

definition of ‘‘loss of waters of the 

United States,’’ waters of the United 

States temporarily filled, flooded, 

excavated, or drained, but restored preconstruction contours and elevations 

after construction, are not included in 

the measurement of loss of waters of the 

United States. 

One commenter said there is 

inconsistency in the text of NWP 12 

because it states that there must be no 

change in pre-construction contours of 

waters of the United States, but NWP 12 

also authorizes losses of waters of the 

United States. This commenter 

recommended revising the text of NWP 

12 to state that ‘‘there must be no 

change in pre-construction contours 

which results in permanent loss of 

waters of the United States.’’ One 

commenter stated that the Corps should 

adopt a strict interpretation of the 

2772 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

amount of ‘‘temporary fill’’ authorized 

by this NWP for the purposes of 

assessing cumulative impacts and 

should also consider the timing and 

duration of temporary fills, including 

temporary mats. This commenter 

indicated that permitted temporary fills 

generally occur in stages and not all at 

the same time. 

Some activities authorized by NWP 12 

(e.g., the construction of substations and 

permanent access roads) result in 

permanent fills while other authorized 

activities, such as the placement of 

temporary fills, require restoration to 

pre-construction elevations. Temporary 

fills do not contribute to cumulative 

impacts because they are removed upon 

completion of the work and the 

permittee is required to restore the 

affected area to pre-construction 

elevations. The Corps acknowledges 

that temporary fills may occur during 

different stages of construction, 

maintenance, repair, or removal of an 

oil or natural gas pipeline activity. 

Pre-Construction Notification 

Thresholds 

Many commenters opposed reducing 

the number of PCN thresholds in this 

NWP. Several commenters suggested 

that reducing the PCN requirement 

would result in the NWP authorizing 

activities that have more than minimal 

adverse environmental effects, 

including cumulative effects. Many of 

these commenters suggested retaining 

the existing PCN thresholds. One of 

these commenters requested further 

clarification regarding which activities 

would no longer require PCNs. A few of 

these commenters stated that 

maintaining the status quo creates 

greater regulatory certainty to the 

industry. Many commenters said that 

reducing the PCN thresholds for this 

NWP undermines the Corps’ ability to 

ensure that authorized activities NWPs 

will result in no more than minimal 

individual and cumulative adverse 

environmental effects, and reduces the 

opportunity for the Corps to require 

individual permits when adverse 

environmental effects would be more 

than minimal. One commenter 

remarked that the proposed reduction in 

PCN thresholds would cause increased 

harm to rivers, streams, and wetlands. 

The Corps proposed to retain those 

PCN thresholds associated with NWP 12 

activities that result in losses of waters 

of the United States or have potential 

effects on navigation. To reduce 

regulatory burdens in response to E.O. 

13783, the Corps proposed to remove a 

number of PCN thresholds because of 

the requirement in the NWP to restore 

temporary impacts to pre-construction 

elevations or because they are already 

addressed by another PCN threshold. If 

a proposed NWP 12 activity does not 

trigger any of the three PCN thresholds 

in the text of the NWP, or a PCN 

threshold in the text of one of the NWP 

general conditions (e.g., general 

condition 18, endangered species and 

general condition 20, historic 

properties), then pre-construction 

notification is not required for the 

proposed activity unless a division 

engineer has imposed a regional 

condition to require PCNs in a 

particular geographic region. Division 

engineers can add regional conditions to 

add PCN thresholds that were removed 

from the text of NWP 12, if he or she 

determines the PCN threshold is 

necessary to ensure that the NWP 

authorizes only those activities that 

have no more than minimal adverse 

environmental effects. Adverse effects to 

rivers, streams, and wetlands are 

generally caused by the discharges of 

dredged or fill material or structures or 

work authorized by this NWP, not by 

the presence or absence of a PCN 

threshold. 

Many commenters expressed support 

for proposed reduction in PCN 

thresholds for NWP 12 and the 

associated reduced administrative 

burden that reduction would provide. 

One commenter voiced support for the 

reduction in PCN requirements as it 

would reduce the potential for 

infrastructure litigation and encourage 

private investment. One commenter 

stated that PCN thresholds should be 

removed when they are duplicative or 

burdensome. One commenter said that 

if the PCN requirements to be removed 

are truly redundant it would pose no 

additional burden on the regulated 

public. 

The Corps acknowledges these 

comments, and the Corps’ intent with 

these changes is to reduce burdens on 

the regulated public and focus the PCN 

thresholds on those activities that have 

some potential to cause more than 

minimal adverse environmental effects. 

For these activities, district engineers 

should be given the opportunity to 

evaluate these activities on a case-bycase basis. 

Many commenters stated that the PCN 

process incentivizes permittees to avoid, 

minimize, and compensate for impacts 

to aquatic resources in order to reduce 

permitting delays. Some of these 

commenters said that the reduced PCN 

requirements would result in violations 

to general condition 23, mitigation. One 

commenter stated that the remaining 

PCN thresholds and the other NWP 12 

terms and conditions reasonably limit 

the adverse environmental effects of the 

activities authorized by NWP 12. One 

commenter said that the Corps should 

encourage the districts to refrain from 

adding PCN thresholds to this NWP, 

specifically through regional conditions. 

A few commenters expressed concern 

that the reduction of PCN thresholds 

will likely be subject to litigation. One 

commenter suggested that any resulting 

litigation could cause uncertainties for 

the industries that rely on the NWP 

program. 

The NWPs provide incentives for 

project proponents to reduce impacts to 

waters of the United States to obtain DA 

authorization in less time than is 

required under the individual permit 

process. Reducing the number of PCNs 

does not violate general condition 23. 

The NWPs authorize activities that have 

no more than minimal individual and 

cumulative adverse environmental 

effects, and it is not necessary to require 

compensatory mitigation for every NWP 

activity. The PCN thresholds themselves 

do not limit adverse environmental 

effects; the adverse environmental 

effects caused by regulated activities 

authorized by an NWP are limited by 

the constraints in the text of the NWP 

(e.g., the 1⁄2-acre limit, requirements to 

restore temporary impacts to preconstruction elevations) and in the NWP 

general conditions. Division engineers 

have the authority to add regional 

conditions to replace the PCN 

thresholds that were in prior versions of 

NWP 12, if those division engineers 

determine that adding those PCN 

thresholds is necessary to ensure that 

the NWP only authorizes those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. While potential 

litigation risk is a consideration when 

contemplating changes, other factors 

such as administrative efficiency, 

reduction of regulatory burdens, and 

other approaches for maintaining 

environmental protections are other 

considerations that the Corps considers 

as well. 

A few commenters stated that the 

proposed reduction in PCN thresholds 

could expedite permit processing time 

and preclude a thorough review by the 

Corps. One commenter said that 

reducing the number of PCN thresholds 

would allow for the potential for spills 

near stream beds. One commenter 

opposed the simplified PCN 

requirements, stating that the proposal 

does not improve inter-agency 

coordination or reduce impacts on the 

environment. One commenter said that 

PCNs should be required for all NWP 12 

activities. One commenter stated that 

the Corps fails to show how compliance 

with Clean Water Act Section 404(e) 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2773 

would be achieved without a process to 

track all NWP activities. 

The reduction in PCN thresholds 

allows Corps districts to shift their 

resources towards evaluating proposed 

activities that require DA authorization 

that have the potential for greater 

adverse environmental effects. Reducing 

the number of PCN thresholds will not 

alter the potential for spills to occur 

near stream beds because spills are 

accidents and not planned activities that 

the Corps would evaluate as part of a 

PCN. The reduction in the number of 

PCN thresholds in NWP 12 does not 

alter any agency coordination 

procedures because agency coordination 

is not required for any NWP 12 

activities. It is not necessary to require 

PCNs for all NWP 12 activities, because 

many of the activities authorized by 

NWP 12 result in only temporary 

impacts to aquatic resources. The Corps 

does not have to track all NWP activities 

to comply with Section 404(e) of the 

Clean Water Act. Since the inception of 

the NWP program in 1977, many of the 

NWPs have not require pre-construction 

notification, thus the changes that are 

being finalized are not a departure from 

the Corps practice or procedures. 

A few commenters said that reducing 

the PCN requirement does not comply 

with the Corps’ mandate under ESA 

section 7 to ensure consultation occurs 

when necessary. One commenter said 

that PCN should be required for all 

maintenance activities in waters of the 

United States, especially if the waters 

contain ESA-listed species. A few 

commenters opposed reducing the 

number of PCN thresholds for NWP 12 

because the PCN process allows state 

natural resource agencies to provide 

expertise in determining the effect of 

projects on state resources, affected 

species, and their habitat. A few 

commenters stated the reduced number 

of PCN thresholds would not comply 

with the NHPA. One commenter said 

that the proposed reduction in PCN 

thresholds could have potential impacts 

to cultural resources and affect the 

protection of historic properties. Several 

commenters said that the proposed 

reduction of PCN thresholds poses risks 

of significant impacts to tribal rights and 

treaty-reserved resources. 

General condition 18 addresses 

compliance with section 7 of the ESA. 

Under paragraph (c) of general 

condition 18, non-federal permittees 

must submit a pre-construction 

notification to the district engineer if 

any listed species or designated critical 

habitat might be affected or is in the 

vicinity of the activity, or if the activity 

is located in designated critical habitat 

even if a PCN is not otherwise required. 

This includes maintenance activities 

that might affect listed species or 

designated critical habitat. None of the 

activities authorized by NWP 12 require 

coordination with state natural resource 

agencies, and the PCN thresholds that 

have been removed from NWP 12 did 

not require that coordination. 

General condition 20 addresses 

compliance with section 106 of the 

NHPA. Under paragraph (c) of general 

condition 20, non-federal permittees 

must submit a pre-construction 

notification to the district engineer if the 

NWP activity might have the potential 

to cause effects to any historic 

properties listed on, determined to be 

eligible for listing on, or potentially 

eligible for listing on the National 

Register of Historic Places, including 

previously unidentified properties even 

if a PCN is not otherwise required. The 

reduction in PCN thresholds for NWP 

12 does not change the PCN 

requirement in general condition 20. 

During the process for issuing these 

NWPs, Corps districts have been 

consulting or coordinating with tribes to 

identify regional conditions or 

coordination procedures to ensure that 

activities authorized by NWP 12 and 

other NWPs do not have substantial 

adverse effects on tribal rights and, as 

appropriate, treaty reserved resources. 

Division engineers can add PCN 

requirements to address tribal concerns 

as appropriate. 

One commenter objected to the lack of 

a PCN threshold based on pipeline 

diameter. One commenter requested 

that the Corps provide additional 

information regarding the outcomes of 

PCN reviews under the current NWPs 

and an explanation for how 

environmental protection would be 

maintained without the PCN review 

process. One commenter stated that the 

Corps should clearly identify the 

information required by all applicants to 

support the analysis of temporal and 

cumulative impacts and recommended 

separate analyses for all impacts to 

waters of the United States within the 

total impact limitation of 1⁄2-acre. 

Pre-construction notification 

thresholds are established for activities 

that have the potential to result in more 

than minimal adverse environmental 

effects, and pipeline diameter has not 

been demonstrated to have potential to 

be a useful PCN threshold. During their 

reviews of PCNs, district engineers 

document their conclusions as to 

whether the proposed activity will 

result in no more than minimal adverse 

environmental effects, or whether it is 

necessary to exercise discretionary 

authority and require an individual 

permit for the proposed activity. This 

documentation includes the district 

engineer’s consideration of cumulative 

effects. 

In the paragraphs below, the Corps 

discusses each of the five PCN 

thresholds it proposed to remove to 

simplify the PCN requirements for this 

NWP. The Corps discusses the 

comments received and provides 

responses to those comments. In the 

paragraphs that follow, the Corps uses 

the term ‘‘utility line’’ because it 

proposed the same PCN thresholds for 

NWP 12 and proposed new NWPs C and 

D (now designated as NWPs 57 and 58, 

respectively in this final rule). Also 

discussed below is the Corps’ proposal 

to add a new PCN threshold to NWP 12 

for new oil or natural gas pipelines 

greater than 250 miles in length. 

(i) The activity involves mechanized 

land clearing in a forested wetland for 

the utility line right-of-way. Many 

commenters said that allowing 

mechanized land clearing through 

forested wetlands without requiring 

PCNs will cause more than minimal 

adverse environmental effects and 

recommended that this PCN threshold 

requirement be retained. Many 

commenters said that PCNs should be 

required for mechanized land clearing 

associated with NWP 12 to prevent the 

loss of wetland resources, functions and 

services, including water quality, 

erosion control, and flood mitigation. A 

few commenters suggested a maximum 

acreage for forest clearing activities 

without a PCN associated with NWP 12. 

One commenter stated that the PCN 

threshold should be modified to require 

PCNs for ‘‘loss or permanent 

conversion.’’ 

If construction of an oil or natural gas 

pipeline involves mechanized land 

clearing in a forested wetland for the 

right-of-way for that pipeline, the 

installation of the pipeline must cause 

no change in pre-construction contours 

of waters of the United States. Any 

temporary fills must be removed upon 

completion of construction, and the 

affected areas restored to preconstruction elevations. If there are any 

permanent fills associated with the 

mechanized land clearing of a forested 

wetland, and the loss of waters of the 

United States is greater than 1⁄10 acre, a 

PCN is required. In areas where 

temporary fills occur, the wetlands in 

the right-of-way will remain, although 

there may be a conversion in wetland 

type. Those wetlands will continue to 

perform wetland functions, including 

hydrologic functions, biogeochemical 

cycling, and habitat functions, but there 

may be some changes to those functions 

and the degree to which the wetlands 

perform those functions. Division 

2774 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

engineers can impose regional 

conditions to require PCNs for 

mechanized land-clearing in a forested 

wetland, and they can add regional 

conditions to impose an acreage limit on 

impacts resulting from mechanized 

land-clearing of forested wetlands. 

Many commenters said that PCNs 

should be required for mechanized land 

clearing in forested wetlands to allow 

district engineers to consider avoidance, 

minimization, and the need for 

compensatory mitigation, as compliance 

with the 404(b)(1) guidelines, and 

further recommended retention of this 

PCN threshold. One of these 

commenters stated that temporary 

impacts should also be considered. 

Many commenters expressed concern 

that mechanized land clearing in 

forested wetlands would result in the 

long-term and/or permanent conversion 

of these areas to emergent and scrubshrub wetlands, and further indicated 

that these scrub-shrub and emergent 

wetlands do not provide the same 

degree of ecological functions and 

services or provide the same values. 

Several of these commenters asserted 

that this conversion in wetland type 

causes more than minimal adverse 

effects to the environment. 

Paragraph (a) of general condition 23 

requires project proponents to design 

and construct their NWP activities to 

avoid and minimize temporary and 

permanent adverse effects to waters of 

the United States to the maximum 

extent practicable at the project site (i.e., 

on site). Division engineers can add 

regional conditions to this NWP to 

require PCNs and compensatory 

mitigation for mechanized land-clearing 

of forested wetlands. Activities that are 

authorized by NWPs do not require 

activity-specific evaluation under the 

404(b)(1) Guidelines (see 40 CFR 

230.5(b)). Emergent and scrub-shrub 

wetlands perform valued wetland 

functions, even though those functions 

differ to some degree from the functions 

performed by forested wetlands. 

A few commenters stated that clearing 

of forested wetlands can impact wetland 

hydrology and soils through rutting and 

soil compaction by machinery. Many 

commenters stated that a review of preand post-construction hydrogeomorphic 

method assessments demonstrates 

significant permanent impacts to 

forested wetlands resulting from 

mechanized land clearing and 

temporary discharges. Several 

commenters said that forested wetlands 

along the Gulf Coast provide vital 

stopover areas for migratory birds and 

that the proposed removal of this PCN 

threshold would be most profound 

along the Gulf Coast where pipelines are 

regularly constructed through forested 

wetlands. 

The text of this NWP that applies to 

the construction of the pipeline requires 

that there is no change in preconstruction contours of waters of the 

United States. If there are permanent 

impacts to certain features of these 

forested wetlands, those impacts are 

caused by the activities authorized by 

NWP 12, not the presence or absence of 

any PCN threshold. Soil compaction can 

be caused by a variety of activities other 

than discharges of dredged or fill 

material. If the activity results in a loss 

of greater than 1⁄10-acre of waters of the 

United States, then the project 

proponent is required to submit a PCN. 

For those Corps districts in the Gulf 

Coast, division engineers add regional 

conditions to require PCNs for 

mechanized land-clearing activities in 

forested wetlands. 

Several commenters said that the 

Corps does not cite any sources for 

stating that mechanized land clearing in 

forested wetlands usually results in only 

temporary impacts. A few commenters 

stated that the Corps has not provided 

any scientific rationale demonstrating 

that loss of forested wetland would not 

result in more than minimal adverse 

environmental effects. A few 

commenters said that the consensus in 

the scientific literature contradicts the 

Corps’ assertion, with multiple studies 

and practices indicating that 

mechanized clearing results in 

irreversible and permanent alteration of 

forested wetland’s functions. One 

commenter cited paragraph (i) of general 

condition 23 which allows district 

engineers to require mitigation for the 

permanent conversion of wetland types 

to offset losses of specific functions. 

One commenter said that the functions 

of forested wetlands have been 

estimated by the Corps to have a value 

of $10,401 per acre per year. A few 

commenters stated that mechanized 

land clearing can result in sediment 

disturbance and potential water quality 

impacts in wetland areas. A few 

commenters stated that removing the 

PCN requirement for mechanized land 

clearing in forested wetlands would 

make NWP 12 vulnerable to litigation. 

The text of NWP 12 requires 

temporary impacts to be restored after 

the pipeline is constructed. If the 

construction of the pipeline results in 

the loss of greater than 1⁄10-acre of 

waters of the United States, then the 

project proponent is required to submit 

a PCN to the Corps. The removal of the 

PCN threshold is an administrative 

decision to improve regulatory 

efficiency, reduce redundancy, and 

focus the district engineer’s evaluation 

efforts on proposed activities that have 

the potential to result in more than 

minimal adverse environmental effects. 

If mechanized land-clearing causes 

irreversible and permanent alteration of 

forested wetland’s functions, it is 

because of the physical effects of the 

discharge of dredged or fill material into 

waters of the United States and the 

periodic maintenance in the pipeline 

right-of-way that causes those changes 

in wetland functions. The Corps 

regulates the former, but does not 

regulate the mowing and cutting of 

vegetation to maintain the plant 

community in the pipeline right-of-way 

as herbaceous vegetation or scrub-shrub 

vegetation. Paragraph (i) of general 

condition 23 is retained in these NWPs, 

so for those NWP 12 activities that 

require PCNs, district engineers can 

require compensatory mitigation to 

offset permanent losses of certain 

wetland functions. 

One commenter stated that impacts to 

forested wetlands are permanent or 

semi-permanent and should not be 

considered temporary. One commenter 

suggested the cumulative effects of 

forested wetland conversion cannot be 

tracked without a PCN requirement. 

One commenter stated that the removal 

of the PCN for mechanized land clearing 

in forested wetlands is a change with 

implications for market growth of the 

ecological restoration industry. One 

commenter stated that mechanized land 

clearing can increase non-point source 

pollution in a water of the United States 

and can increase nutrient loading in 

first and second order streams. One 

commenter said that mechanized land 

clearing in forested wetlands is 

associated with an increase in the 

spread of invasive species. 

Forested wetlands that have been 

converted to herbaceous or scrub-shrub 

wetlands continue to function as 

wetlands. Therefore, from a wetland 

perspective, the impacts caused by the 

below-ground installation of the 

pipeline are temporary as long as 

temporary fills are removed and the 

affected area is restored to preconstruction elevations. Although the 

wetland type has changed as a result of 

the activity, district engineers can 

require compensatory mitigation to 

offset losses of specific wetland 

functions for those NWP 12 activities 

that require PCNs. If the permittee 

wants to conduct mechanized land 

clearing of a forested wetland for an oil 

or natural gas pipeline right-of-way, he 

or she must restore the disturbed soils 

so that there is no change in preconstruction contours of waters of the 

United States in that right-of-way. If 

there will be permanent changes in preVerDate Sep<11>2014 18:34 Jan 12, 2021 Jkt 253001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2
Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2775 

construction contours in waters of the 

United States, and the area of those 

permanent changes will exceed 1⁄10-acre, 

then a PCN is required. Permanent 

adverse effects can be addressed 

through the PCN review process. Where 

appropriate to ensure minimal adverse 

effects on the environment in a 

particular region, division engineers can 

add regional conditions to require PCNs 

for mechanized land clearing in a 

forested wetland right-of-way. 

(ii) The utility line in waters of the 

United States, excluding overhead lines, 

exceeds 500 feet. One commenter stated 

that the 500 linear foot PCN threshold 

should be maintained since the 1⁄10-acre 

threshold only covers losses of waters of 

the United States and retaining it would 

allow the district engineer to evaluate 

the site-specific conditions and make an 

informed decision. One commenter said 

that removal of the 500 linear foot PCN 

threshold limits the Corps ability to 

review projects that will affect habitat, 

ecosystems, and the environment on 

tribal lands and within tribal usual and 

accustomed areas that cross state lines 

and international borders and further 

indicated that this would constitute a 

violation of the United States and trust 

and responsibility and obligation to 

protect treaty resources. 

The 1⁄10-acre PCN threshold for losses 

of waters of the United States provides 

an opportunity for district engineers to 

evaluate site-specific conditions and 

determine whether the proposed oil or 

natural gas pipeline activities are 

authorized by NWP 12. The 1⁄10-acre 

PCN threshold also provides district 

engineers with the opportunity to assess 

potential effects on habitat, ecosystems, 

environmental conditions on tribal 

lands, and tribal usual and accustomed 

areas. District engineers can work with 

tribes to develop coordination 

procedures to help protect treaty 

resources. In addition, activities 

authorized by NWP 12 must comply 

with general condition 17, tribal rights. 

One commenter said that if this PCN 

threshold is removed, the Corps cannot 

evaluate the impacts of temporary losses 

or determine if specific restoration or 

mitigation measures are necessary, or if 

an individual permit would be 

necessary. One commenter said that the 

proposal to remove the 500 linear foot 

PCN threshold should be coterminous 

with other section 404 permitting 

requirements, but since this justification 

does not apply in all situations it is 

inappropriate. An example cited by this 

commenter is utility lines directionally 

drilled under wetlands. 

Temporary impacts should not 

normally require PCNs because the 

aquatic resources and the functions they 

provide should recover after the 

temporary fills are removed and the 

affected area restored to preconstruction elevations. The removal of 

the 500 linear foot PCN threshold 

improves the Corps’ efficiency in 

administering the section 404 program. 

Further, it is consistent with section 404 

permitting requirements, because the 

Corps determines which activities 

should require PCNs to trigger review 

on a case-by-case basis. 

(iii) The utility line is placed within 

a jurisdictional area (i.e., water of the 

United States), and it runs parallel to or 

along the stream bed that is within that 

jurisdictional area. One commenter 

stated that installing pipelines that run 

parallel to a watercourse can have 

significant impacts on 

hydrogeomorphology of the watercourse 

and lead to substantial erosion and 

degradation. A few commenters 

recommended retention of the 

requirement for a PCN when the 

proposed activity would run parallel to 

and within a stream bed, citing the 

potential for those activities to 

downgrade aquatic resource functions. 

As discussed in the 2020 Proposal (85 

FR 57326), the Corps proposed to 

remove this PCN threshold because the 

text of NWP 12 requires restoration of 

these temporary impacts. The third 

paragraph of NWP 12 addresses the 

requirements for trenching and 

backfilling underground oil or natural 

gas pipelines to ensure those impacts 

are temporary and do not result in a loss 

of waters of the United States. The ninth 

paragraph of NWP 12 also addresses the 

requirements for restoring temporary 

fills, so that those fills do not result in 

losses of jurisdictional waters and 

wetlands. Further, in Corps districts 

where the construction of oil or natural 

gas pipelines in jurisdictional waters 

and wetlands parallel to a stream 

channel have the potential to cause 

more than minimal individual and 

cumulative adverse environmental 

effects, division engineers may add 

regional conditions to NWP 12 to 

require PCNs for these activities. 

(iv) Permanent access roads are 

constructed above grade in waters of the 

United States for a distance of more 

than 500 linear feet. Several 

commenters said that the PCN 

requirement for permanent access roads 

should be retained to ensure NWP 12 

activities not authorize more than 

minimal adverse effects. One 

commenter opposed the removal of the 

PCN threshold for associated access 

roads and culvert-related activities so 

that district engineers can evaluate 

potential impacts to fish passage. 

The PCN threshold for losses of 

greater than 1⁄10-acre of waters of the 

United States applies to permanent 

access roads, and that PCN threshold is 

sufficient for providing district 

engineers with the opportunity to 

review those activities to determine if 

they qualify for NWP authorization. The 

Corps is removing this PCN threshold 

for above-grade permanent access roads 

because it is redundant with the 1⁄10- 

acre PCN threshold. Concerns about 

potential impacts to fish passage are 

addressed by NWP general condition 2. 

General condition 2 states that no NWP 

activity may substantially disrupt the 

necessary life cycle movements of those 

species of aquatic life indigenous to the 

waterbody, including those species that 

normally migrate through the area, 

unless the activity’s primary purpose is 

to impound water. Furthermore, general 

condition 2 requires all permanent and 

temporary crossings of waterbodies to 

be suitably culverted, bridged, or 

otherwise designed and constructed to 

maintain low flows to sustain the 

movement of those aquatic species. 

(v) Permanent access roads are 

constructed in waters of the United 

States with impervious materials. A few 

commenters suggested a maximum 

length for impervious surfaces without 

a PCN associated with NWP 12. The 

current PCN requirement for losses of 

waters of the United States greater than 

1⁄10-acre is sufficient to trigger activityspecific review for permanent access 

roads constructed with impervious 

materials, to allow district engineers to 

determine whether a particular 

proposed access road will result in no 

more than minimal adverse 

environmental effects. 

Proposed Addition of a PCN Threshold 

for New Oil or Natural Gas Pipeline 

Activities Greater Than 250 Miles in 

Length 

Many commenters objected to the 

proposed PCN threshold for new oil or 

natural gas pipelines that are greater 

than 250 miles in length, stating that it 

is arbitrary and capricious, and 

indicated that there is no reasonable 

basis for the 250-mile threshold. One 

commenter expressed support for the 

addition of the 250-mile pipeline length 

PCN requirement. One of the 

commenters said that this PCN 

threshold is inconsistent with other 

PCN thresholds. Many commenters 

objected to removing the current PCN 

thresholds and replacing them with the 

250-mile PCN threshold. One 

commenter expressed support for the 

proposal to require that PCNs include 

information on all discharges associated 

with a pipeline, including those that 

2776 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

would not otherwise require a PCN. One 

commenter stated that the phrase 

‘‘associated with an overall project’’ was 

unclear and undefined. 

As discussed in the 2020 Proposal, 

this PCN threshold is being added for 

new oil or natural gas pipelines to 

provide district engineers the 

opportunity to review all crossings of 

waters of the United States for new 

long-distance oil or natural gas 

pipelines to ensure that the activities 

authorized by NWP 12 will result in no 

more than minimal individual and 

cumulative adverse environmental 

effects (see 85 FR 57327). Given the 

concerns expressed by numerous 

commenters regarding the potential 

cumulative adverse environmental 

effects that may be caused by NWP 12 

activities, this is not an arbitrary or 

capricious addition to the PCN 

requirements for NWP 12. This new 

PCN threshold is not a replacement for 

the PCN thresholds the Corps is 

removing from NWP 12. It is a new PCN 

threshold to address stakeholder 

concerns about cumulative effects. The 

phrase ‘‘associated with an overall 

project’’ refers to the entire oil or natural 

gas pipeline that is greater than 250 

miles in length. 

Several commenters supported a 

scope or length-based PCN threshold 

but suggested that the Corps adopt more 

protective PCN thresholds in place of 

the proposed 250-mile threshold. One of 

these commenters said that significant 

cumulative environmental impacts are 

likely to occur at a much lower length. 

One of these commenters suggested 

changing the distance in this PCN 

threshold to 25 miles, while another 

commenter suggested 75 miles, and a 

third commenter suggested a 5-mile 

threshold. One commenter said that the 

Corps should require PCNs for any 

proposed oil or natural gas pipeline 

activity resulting in five or more 

crossings. 

The Corps believes that this new PCN 

threshold, plus the other two PCN 

thresholds in NWP 12 (i.e., activities 

requiring section 10 authorization, and 

discharges resulting in the loss of 

greater than 1⁄10-acre of waters of the 

United States), are sufficiently 

protective of the aquatic environment by 

providing information to district 

engineers to conduct case-specific 

reviews of proposed NWP 12 activities 

that have the potential to result in more 

than minimal individual and 

cumulative adverse environmental 

effects. In furtherance of the Corps’ 

review of cumulative effects, paragraph 

(b)(4) of NWP general condition 32 

requires PCNs for proposed NWP 

activities for linear projects to include 

and any other NWP(s), regional general 

permit(s), or individual permit(s) used 

or intended to be used to authorize any 

part of the proposed project or any 

related activity, including other separate 

and distant crossings for linear projects 

that require Department of the Army 

authorization but do not require preconstruction notification. The Corps 

finds that a length of 250 miles is both 

a good indicator of potential cumulative 

effects of an oil or natural gas pipeline 

while minimizing the potential for 

inconsistent implementation of the PCN 

requirement across districts. Although 

the Corps agrees that using a threshold 

of five or more crossings is based on a 

numerical impact, it could be more 

challenging to implement since there 

may be proposed oil or natural gas 

pipeline activities where there are five 

or more crossings and none of those 

crossings require PCNs. 

One commenter suggested replacing 

the PCN threshold for new oil or natural 

pipeline activities with lengths of 

greater than 250 miles with a PCN 

requirement for oil or natural gas 

pipeline activities that cross state or 

district boundaries. Several commenters 

objected to the proposed 250-mile PCN 

threshold, but some of these 

commenters said that the acreage PCN 

threshold is sufficient to ensure no more 

than minimal adverse environmental 

effects. A few commenters remarked 

that the length of a pipeline is not a 

predictor of its crossings of waters of the 

United States or environmental impacts 

and that this PCN threshold has no link 

to the Corps’ regulatory authority. A few 

commenters stated that the 250-mile 

PCN threshold is inconsistent with the 

other proposed utility line activity 

permits as they do not contain that PCN 

threshold. One commenter objected to 

the 250-mile PCN threshold because it 

is limited to new oil or natural gas 

pipelines (i.e., the material to be 

transported after the pipeline is 

constructed). 

As discussed above, the purpose of 

this new PCN threshold is to provide 

information to district engineers to 

facilitate their review of the cumulative 

effects that may be caused by new longdistance oil or natural gas pipelines that 

have waterbody crossings that require 

NWP 12 authorization. These new longdistance oil or natural gas pipelines may 

be constructed within a single state or 

Corps district. The Corps agrees that the 

number of aquatic resources and their 

distribution in the landscape is variable, 

and therefore the number of crossings of 

waters of the United States is similarly 

variable. However, the Corps finds that 

a length of 250 miles is both a good 

indicator of potential cumulative effects 

of an oil or natural gas pipeline while 

minimizing the potential for 

inconsistent implementation of the PCN 

requirement across districts. In addition, 

some oil or natural gas pipeline 

crossings may not require DA 

authorization because they are installed 

through horizontal directional drilling, 

do not involve a waterbody subject to 

Section 10 of the Rivers and Harbors 

Act, and do not involve discharges of 

dredged or fill material into waters of 

the United States. The Corps does not 

believe that this PCN threshold is 

necessary for new NWPs 57 and 58 

because long-distance electric utility 

lines are often constructed as overhead 

utility lines and utility lines for water 

and other substances (e.g., potable 

water, wastewater, sewage) are often 

constructed to serve local communities 

and thus are likely to be shorter in 

overall length. 

One commenter stated that the Corps’ 

Regulatory Impact Analysis for the 

proposed rule is flawed because it 

assumes the new 250-mile PCN 

requirement would result in no 

additional PCNs. One commenter said 

that if the Corps does move forward 

with a 250-mile PCN threshold for new 

oil or natural gas pipeline activities that 

applicants be allowed to provide the 

PCNs based on desktop data as some 

areas may not be accessible for field 

surveys if the project is in the 

development stage. One commenter 

stated that the 250-mile PCN threshold 

would result in the majority of pipeline 

projects being constructed without 

review and would result in damage to 

historic properties. One commenter said 

that the 250-mile threshold has no 

scientific or technical basis. 

The new 250-mile PCN requirement is 

unlikely to require more PCNs for NWP 

12 activities because the likelihood of a 

new oil or natural gas pipeline greater 

than 250 miles in length not having any 

crossings of waters of the United States 

that require PCNs under the other PCN 

thresholds is extremely small. In 

addition, the requirement to provide in 

the PCN the locations and proposed 

impacts for all crossings of waters of the 

United States that require DA 

authorization, including those crossings 

authorized by an NWP would not 

otherwise require preconstruction 

notification, does not trigger a 

requirement for the project proponent to 

submit full PCNs for those other nonPCN crossings of waters of the United 

States. This portion of the new PCN 

requirement is nearly identical to an 

existing requirement in paragraphs 

(b)(4)(i) and (ii) of general condition 32. 

Paragraph (b)(4)(i) requires the project 

proponent to include in the PCN any 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2777 

other NWP(s), regional general 

permit(s), or individual permit(s) used 

or intended to be used to authorize any 

part of the proposed project or any 

related activity, including other separate 

and distant crossings for linear projects 

that require DA authorization but do not 

require pre-construction notification. 

Furthermore, paragraph (b)(4)(ii) of 

general condition 32 currently requires 

project proponents to include in PCNs 

for linear projects where one or more 

single and complete crossings require 

pre-construction notification, the 

quantity of anticipated losses of 

wetlands, other special aquatic sites, 

and other waters for each single and 

complete crossing of those waters and 

wetlands. This quantification also must 

include those single and complete 

crossings authorized by an NWP not 

requiring PCNs. The only additional 

information required by the 250-mile 

PCN threshold is the location of all nonPCN crossings. The Regulatory Impact 

Analysis for this final rule has been 

updated to identify this new PCN 

threshold as a change. The lack of 

discussion of the proposed 250-mile 

PCN threshold in the Regulatory Impact 

Analysis for the proposed rule was an 

error. When a project proponent 

develops a proposal for a new oil or 

natural gas pipeline, some degree of 

environmental analysis and review is 

needed to determine whether there are 

any crossings of waters of the United 

States that require DA authorization, 

and whether any of those crossings 

require PCNs. The new PCN threshold 

should not impose any additional 

burdens on the regulated public. New 

oil or natural gas pipelines must comply 

with general condition 20 for historic 

properties as do all activities authorized 

by an NWP. 

One commenter objected to the 

proposed 250-mile PCN threshold, and 

limiting it to the installation of new oil 

or natural gas pipelines (versus 

conducting repair or maintenance 

activities) along the majority of the 

distance of the overall project length, 

stating that a PCN requirement should 

be triggered even if short distances of 

the pipeline are being replaced. A few 

commenters stated that the proposed 

250-mile PCN threshold is counter to, 

and could undermine, the Corps’ 

longstanding definition of a single and 

complete linear project, and would 

allow district engineers to require 

individual permits because of the length 

of pipeline and cumulative impacts 

regardless of the independent utility of 

the separate and distant crossings. 

The maintenance of existing oil or 

natural gas pipelines is likely to have 

fewer adverse environmental effects 

than the construction of new oil or 

natural gas pipelines, because those 

maintenance activities occur to existing 

pipelines for which some degree of 

adverse environmental effects has 

already occurred and a current 

environmental setting that includes the 

existing pipeline. The 250-mile PCN 

threshold does not undermine the 

Corps’ definition of single and complete 

linear project because each separate and 

distant crossing of waters of the United 

States can continue to be authorized by 

an NWP. If one crossing of waters of the 

United States for an oil or natural gas 

pipeline requires an individual permit, 

then 33 CFR 330.6(d) applies and the 

district engineer will determine which 

activities require individual permits and 

which activities can be authorized by an 

NWP. Section 330.6(d) of the Corps’ 

NWP regulations, as well as Note 2 of 

NWP 12, remain in effect. Section 

330.6(d) and Note 2 maintain the Corps’ 

long-standing process regarding the use 

of NWPs and individual permits to 

authorize linear projects such as oil or 

natural gas pipelines. 

One commenter stated that the 250- 

mile PCN threshold would discourage 

pipeline developers from avoiding and 

minimizing impacts to waters of the 

United States, and from planning longer 

routes to avoid sensitive resources. One 

commenter said that the 250-mile PCN 

threshold will add an unnecessary layer 

of uncertainty and litigation risk. One 

commenter stated that a 250-mile PCN 

threshold would authorize potentially 

significant pipeline activities without 

any district or division review. One 

commenter stated that oil or natural gas 

pipelines greater than 250 miles in 

length are so large they are bound to 

cause more than minimal effects and 

should not be approved under an NWP. 

One commenter stated that the length of 

the utility line should not be used as a 

PCN threshold; environmental 

conditions and impacts should be used 

instead. 

Regardless of the addition of the 250- 

mile PCN threshold, pipeline 

developers are still required to comply 

with paragraph (a) of NWP general 

condition 23, which requires project 

proponents to avoid and minimize 

losses of waters of the United States on 

the project site, including permanent 

and temporary losses of those resources. 

The purpose of the new PCN threshold 

is to add a mechanism to provide 

information for the district engineer’s 

cumulative effects determination and 

the district engineer’s decision on 

whether to issue NWP verifications for 

the proposed crossings of waters of the 

United States. The information on all of 

the crossings will inform whether or not 

the cumulative adverse environmental 

effects of all crossings are or are not 

more than minimal. This PCN threshold 

also provides the district engineer to 

require an individual permit for the 

proposed oil or natural gas pipeline 

activities when he or she determines the 

cumulative adverse environmental 

effects of the proposed crossings of 

waters of the United States are more 

than minimal. This may help reduce 

litigation risk. The 250-mile PCN 

threshold provides information for the 

district engineer’s review, who also uses 

information on current environmental 

conditions and potential impacts of the 

proposed NWP activities to determine 

whether NWP authorization is 

appropriate for these NWP 12 activities. 

Division engineers do not have a role in 

reviewing NWP PCNs. 

Other Provisions of NWP 12 

One commenter said that Note 2 

should be reissued with no changes, as 

it clarifies concepts such as ‘‘single and 

complete project,’’ ‘‘single and complete 

non-linear project,’’ ‘‘independent 

utility,’’ and the interaction of the NWPs 

with individual permits. The Corps has 

reissued Note 2 with no changes. Note 

2 differs from the 250-mile PCN 

threshold in that an individual permit is 

required for the proposed oil or natural 

gas pipeline if one or more crossings of 

waters of the United States does not 

qualify for NWP authorization. Under 

the 250-mile PCN threshold, an 

individual permit is required if the 

district engineer determines the 

cumulative adverse environmental 

effects of all crossings of waters of the 

United States that require DA 

authorization will result in more than 

minimal cumulative adverse 

environmental effects. 

A few commenters objected to 

authorizing separate and distant 

crossings as single and complete 

projects. These commenters believe that 

the practice causes more than minimal 

cumulative adverse effects. A few 

commenters expressed opposition to 

allowing multiple ‘‘single and 

complete’’ project authorizations of the 

same pipeline to be authorized by the 

NWP 12, stating that it would be more 

appropriate to consider the entire 

pipeline as a single and complete 

project. One of these commenters said 

that more individual permits should be 

required for these activities. 

The authorization of separate and 

distant crossings of waters of the United 

States as single and complete projects 

for the purposes of NWP authorization 

is a long-standing practice consistent 

with the Corps’ regulations at 33 CFR 

330.2(i). 

2778 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

One commenter expressed concern 

with the cumulative effects analyses for 

multiple single and complete crossings 

and the inability to account for NWP 

activities that do not require PCNs. One 

commenter said that the proposed 

reissuance of NWP 12 is arbitrary and 

capricious and in violation of the Clean 

Water Act because it allows unlawful 

piecemealing of large pipelines and 

other linear projects to avoid individual 

permit review. One commenter stated 

that an entire pipeline project should be 

subject to NEPA review, including a 

cumulative review of all impacts to 

waters of the United States. 

Paragraph (b)(4) of NWP general 

condition 32 requires project 

proponents to include in PCNs any 

other NWP(s), regional general 

permit(s), or individual permit(s) used 

or intended to be used to authorize any 

part of the proposed project or any 

related activity, including other separate 

and distant crossings for linear projects 

that require DA authorization but do not 

require pre-construction notification. 

This information is used by district 

engineers to determine whether the 

proposed activity will result in no more 

than minimal individual and 

cumulative adverse environmental 

effects. 

Activities authorized by NWP 12 are 

not subject to additional NEPA review, 

because Corps Headquarters fulfills the 

requirements of NEPA when it finalizes 

the national decision document for the 

issuance or reissuance of the NWP. The 

national decision document includes an 

assessment of effects of the Corps 

proposed action (i.e., the issuance or 

reissuance of the NWPs) in accordance 

with the Council on Environmental 

Quality’s definition of ‘‘effects or 

impacts’’ at 40 CFR 1508.1(g) in their 

NEPA regulations. This analysis of 

effects or impacts under NEPA includes 

the projected use of the NWP over the 

5-year period it is expected to be in 

effect. For an NWP that authorizes 

discharges of dredged or fill material 

into waters of the United States, the 

national decision document also 

includes a cumulative impact analysis 

conducted in accordance with 40 CFR 

230.7(b)(3). 

One commenter stated that acreage 

limits and thresholds should remain 

constant with separate consideration at 

each single and complete crossing of 

waters of the United States authorized 

by NWP 12. One commenter said that 

each crossing should require a separate 

permit. One commenter expressed 

concern that the phrase ‘‘separate and 

distant’’ is not defined and would not 

prevent a pipeline from being used 

multiple times in close proximity and/ 

or on the same waterbody under NWP 

12. Another commenter said that no 

additional definition of ‘‘separate and 

distant’’ is necessary. One commenter 

stated that the Corps should impose an 

overall limit on cumulative effects 

allowed for a project with multiple 

‘‘single and complete’’ crossings. 

Nationwide permit 12 has a 1⁄2-acre 

limit for each single and complete 

project. As discussed above, and in 33 

CFR 330.2(i), each separate and distant 

crossing of waters of the United States 

may qualify for a separate NWP 

authorization. The Corps declines to 

define the phrase ‘‘separate and distant’’ 

because what constitutes separate and 

distant crossings can vary across the 

country because of differences in the 

distribution of waters and wetlands in 

the landscape, local hydrologic 

conditions, local geologic conditions, 

and other factors. What constitutes 

separate and distant crossings is more 

appropriately determined by district 

engineers on a case-by-case basis. When 

reviewing a PCN, the district engineer 

considers the cumulative effects of all 

crossings of waters of the United States 

for the oil or natural gas pipeline 

activity, and applies the 10 criteria 

listed in paragraph 2 of Section D, 

District Engineer’s Decision. 

One commenter said that Note 4 

should refer to the General Bridge Act 

of 1946 instead of Section 9 of the 

Rivers and Harbors Act of 1899. The 

Corps has made this change to Note 4. 

With respect to Note 5 of this NWP, 

a few commenters requested that the 

Corps provide clarification and 

examples of exempted utility line 

activities under Section 404(f) of the 

Clean Water Act. One commenter 

suggested that the Corps provide 

examples of utility line activities that do 

not qualify for the exemption. In 

accordance with the 1989 Memorandum 

of Agreement Between the Department 

of the Army and the U.S. EPA 

Concerning the Determination of the 

Section 404 Program and the 

Application of the Exemptions under 

Section 404(f) of the Clean Water Act, 

the U.S. EPA has the authority to 

determine which activities are eligible 

for the Clean Water Act section 404(f) 

exemptions. 

Comments on Proposal To Issue 

Separate NWPs for Different Utility Line 

Sectors 

Many commenters expressed support 

for dividing oil and natural gas pipeline 

activities from other types of utility line 

activities. Several commenters 

acknowledged that the three types of 

utility lines are of varying sizes and 

lengths, constructed with different 

methods, and have different relative 

impacts to streams and wetlands. One 

commenter said that the proposed 

division of NWP 12 into three separate 

NWPs ensures that the activities 

authorized by these NWPs are 

substantially similar in nature and will 

further ensure that each of the NWPs 

will have no more than minimal adverse 

effects on the environment. One 

commenter stated that permitting utility 

line activities through three separate 

NWPs helps reduce litigation risk for 

some types of utility line activities. 

The Corps acknowledges that issuing 

three separate NWPs for different types 

of utility lines helps ensure that the 

categories of activities authorized by 

these NWP are substantially similar in 

nature and that they will result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. The issuance of three NWPs for 

different categories of utility line 

activities may also help reduce 

regulatory uncertainty for electric utility 

line operators, telecommunications 

companies, state, tribal, and local water 

authorities, and other entities that 

construct, maintain, and operate these 

utility lines. It may also provide 

diversity and stability to the NWP 

program and allow Corps districts to 

continue to authorize categories of 

utility line activities by an NWP in the 

event that one of the three NWPs is 

invalidated or stayed by a federal court. 

Most of the past litigation on NWP 12 

has been for oil or natural gas pipelines, 

not electric and telecommunications 

lines or utility lines that convey potable 

water, wastewater, sewage and other 

such substances. Issuing separate NWPs 

for electric utility line and 

telecommunications activities and for 

utility lines for water and other 

substances will help provide some 

degree of regulatory certainty for the 

entities that construct and maintain 

those types of utility lines. These 

separate NWPs will also benefit the 

people who rely on electric utility lines 

and telecommunication lines and utility 

lines for water and other substances to 

deliver energy, information, 

entertainment, potable water, and other 

goods and services. The public will also 

benefit from the removal of sewage and 

wastewater to protect public health and 

the environment. 

A few commenters requested that if 

NWP 12 is divided that the Corps be 

clear that all provisions relating to 

substations, foundations, and access 

roads, and as well as provisions on 

inadvertent returns of drilling fluids, 

temporary structures and fills (including 

use of temporary mats), and 

accompanying notes, remain with the 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2779 

same legal effect and with no additional 

restrictions. The Corps has written these 

three NWPs in a consistent manner to 

provide a similar framework for 

authorizing regulated activities 

associated with utility lines, utility line 

substations, access roads, actions to 

remediate inadvertent returns, and the 

authorization of temporary impacts for 

construction and other activities. 

One commenter suggested that the 

Corps issue separate NWPs for utility 

lines based on the distinction as to 

whether they are overhead utility lines, 

such as electric and telecommunication 

lines, or underground utility lines. One 

commenter requested that the Corps 

change the proposed NWP 12 to 

authorize ‘‘underground pipeline or 

utility line related activities.’’ Several 

commenters said that buried linear 

utility lines have substantially similar 

environmental effects on waters of the 

United States. One commenter indicated 

there is variability and no reasonable 

justification for dividing the NWPs 

based on above-ground and belowground activity types. A few 

commenters said that the construction 

of oil, natural gas, water, and other 

utilities typically require more ground 

and vegetation disturbance than the 

construction methods for electrical 

utility lines. These commenters also 

stated that electrical utility lines have 

more flexibility to avoid aquatic 

resources, and that discharges of 

dredged or fill material associated with 

electric utility lines typically have a 

smaller footprint than they do for other 

in-ground utility lines. One commenter 

said that the Corps should keep all 

buried, underground utility lines in 

NWP 12, rather than create a new NWP 

for utility line activities for water and 

other substances, because best 

management practices for protecting 

waters from trenching or boring for 

pipes are similar in nature regardless of 

the product to be carried in the pipe. 

After reviewing the public comments, 

the Corps determined that issuing 

separate NWPs for oil or natural gas 

pipeline activities, electric utility line 

and telecommunications activities, and 

utility line activities for water and other 

substances would be the best approach 

for reducing regulatory uncertainty for 

different utility line sectors. 

One commenter suggested that the 

Corps further distinguish between 

natural gas and petroleum liquids in 

recognition of the differences in 

environmental consequences of 

potential leaks. One commenter 

recommended that the Corps further 

distinguish between large interstate 

natural gas pipelines and smaller 

intrastate natural pipelines and service 

lines. 

The Corps does not have the authority 

to address the environmental 

consequences of leaks from oil or 

natural gas pipelines. Those 

environmental consequences are more 

appropriately addressed by federal, 

state, and local government agencies 

that have the legal authority to require 

operators of oil or natural gas pipelines 

to take actions in response to leaks. 

Many commenters objected to the 

proposed separation of NWP 12 into 

three NWPs and requested that the 2017 

NWP 12 be retained in its historic form. 

Many of these commenters said that the 

Corps should focus its concerns on the 

environmental impacts of the 

authorized activities rather than the 

type of material transported by various 

utility lines. Several commenters 

objected to the proposed division of the 

NWP 12 activities indicating that it 

would cause additional complications 

to permitting utility line activities rather 

than streamlining the process. One 

commenter remarked that there are no 

substantive differences between the 

three proposed NWPs and therefore 

issuing separate NWPs is unnecessary. 

Several commenters said that issuing 

three separate utility line NWPs will 

increase litigation risk and uncertainty 

for the regulated public. 

As discussed above, the Corps 

believes that separating NWP 12 into 

three different NWPs to authorize utility 

line activities for different utility line 

sectors will help enhance regulatory 

certainty for utility line sectors that are 

not a frequent target for litigation 

because of the lower degree of concern 

about the potential direct and indirect 

environmental impacts of the 

substances those utility line sectors 

carry (e.g., electricity, potable water, 

wastewater). As with any change in the 

NWP program, prospective permittees 

will experience some challenges 

associated with those changes, but over 

time they will adjust to those changes 

and can realize the benefits of those 

changes. Prior versions of NWP 12 have 

been subjected to litigation, so the 

issuance of three separate NWPs for 

utility line activities is likely to pose no 

greater litigation risk than prior versions 

of NWP 12. 

One commenter said that the Corps 

only analyzed differences but not 

similarities among these different types 

of utility lines. A few commenters said 

that the proposed division of NWP 12 

activities is an abrupt and unjustified 

departure from the long-standing view 

that utility lines are activities that are 

substantially similar. One of these 

commenters said that the proposed 

change is a departure from the NWPs 

that were first promulgated in 1977. A 

few commenters said that a general 

permit should encompass activities that 

are similar in nature consistent with 

Section 404(e) of the Clean Water Act. 

When proposing to issue new NWPs 

for activities that were authorized by a 

previous NWP, discussing the 

differences among those NWPs and the 

associated categories of activities is an 

important part of explaining the 

proposed action. The changes are being 

proposed through the normal 

rulemaking process, and are being made 

in response to events that have raised 

concerns about potential increases in 

regulatory uncertainty for specific 

categories of regulated entities. When 

the NWPs were first issued in 1977, 

there were 15 NWPs. When the NWPs 

were last issued in December 2016, 

there were 52 NWPs. The number of 

NWPs has increased substantially over 

time in response to changes in the Corps 

Regulatory Program, litigation, studies, 

and other factors. The three utility line 

NWPs being issued in this final rule 

represent categories that are similar in 

nature (i.e., oil/natural gas; electricity, 

including communications carried by 

electricity; and water, wastewater, 

sewage, stormwater, and other 

substances). Section 404(e) of the Clean 

Water Act does not specify how broad 

or narrow categories of activities 

authorized by NWPs and other general 

permits must be. The Corps has 

substantial discretion to identify 

categories of activities that are 

appropriate for NWPs and other general 

permits. 

One commenter noted that the Corps’ 

response to public comments for the 

2017 NWPs rejected the idea that utility 

line activities are not substantially 

similar, stating that the Corps explained 

that the agency interprets the ‘categories 

of activities that are similar in nature’ 

requirement broadly to keep the NWP 

program manageable in terms of the 

number of NWPs. A few commenters 

said that the history of the NWPs 

indicates that there is no prior 

precedent in past NWP rulemaking for 

arbitrarily dividing NWPs that are 

intended to cover categories of activities 

that are similar in nature. One of these 

commenters further indicated that the 

mining NWPs (21, 44, 49, and 50) and 

the development NWPs (29 and 39) are 

not analogous as their development 

came about differently, indicating that 

they largely had to do with the end of 

NWP 26. 

As discussed above, Section 404(e) of 

the Clean Water Act gives the Corps 

substantial discretion in how broad or 

narrow to define categories of activities 

2780 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

for general permit authorization. The 

proposal to issue three separate NWPs 

for utility line activities instead of 

reissuing NWP to authorize all utility 

line activities was made, in part, in 

response to concerns about regulatory 

uncertainty for various utility line 

sectors. The proposal is also an 

opportunity to tailor the NWPs so that 

they will authorize activities that have 

no more than minimal individual and 

cumulative adverse environmental 

effects by making targeted changes to 

the text of each of these NWPs, as 

appropriate. 

This proposal is consistent with prior 

NWP rulemaking efforts, in which the 

Corps issued new NWPs to authorize 

categories of activities with numerous 

similarities in the text of the NWP, 

including acreage limits and other 

limits, PCN thresholds, and categories of 

waters in which those NWPs may be 

used to authorize discharges of dredged 

or fill material into waters of the United 

States. For example, in 2007 the Corps 

issued two new NWPs to authorize 

discharges of dredged or fill material 

into waters of the United States for coal 

mining activities (see 72 FR 11092). The 

Corps issued NWP 49 for coal remining 

activities and NWP 50 for underground 

coal mining activities. These two coal 

mining NWPs were issued even though 

the Corps had issued and reissued NWP 

21 for surface coal mining activities over 

time since NWP 21 was first issued in 

1982 (47 FR 31794). 

In 2000, the Corps issued five new 

NWPs and modified six existing NWPs 

to replace NWP 26, which authorized 

discharges of dredged or fill material 

into headwaters and isolated waters (65 

FR 12818). Four of the new NWPs (NWP 

39 for residential, commercial, and 

institutional developments; NWP 40 for 

agricultural activities; NWP 42 for 

recreational facilities; and NWP 43 for 

stormwater management facilities) 

authorized discharges of dredged or fill 

material into non-tidal waters of the 

United States, excluding non-tidal 

wetlands adjacent to tidal waters. Each 

of these NWPs had a 1⁄2-acre limit for 

losses of non-tidal waters of the United 

States. The categories of activities 

established for these four NWPs were 

based on the operational purposes they 

served, which the Corps does not have 

the authority to regulate. Those 

operational purposes included 

providing places for people to live, 

work, learn, and produce goods and 

services (NWP 39); agriculture activities, 

including farm buildings (NWP 40); 

recreational facilities and associated 

features (NWP 42); and stormwater 

management facilities (NWP 43). 

Similar to these NWPs, the three 

NWPs the Corps is issuing to authorize 

various sectors of utility line activities 

are differentiated by the substances 

those utility lines carry, despite the 

Corps’ lack of authority to regulate the 

substances being conveyed by those 

utility lines. If Congress had intended 

the categories of general permits issued 

under Section 404(e) of the Clean Water 

Act to be based on the activity the Corps 

regulates (i.e., discharges of dredged or 

fill material into waters of the United 

States), it would not have written the 

text of section 404(e) to refer to ‘‘any 

category of activity involving discharges 

of dredged or fill material.’’ The text of 

section 404(e) clearly allows the Corps 

to issue any number of NWPs that 

authorize discharges of dredged or fill 

material into waters of the United 

States. Furthermore, those categories 

can be based on how the authorized 

activity will be used after the project 

proponent has completed the 

construction activities associated with 

the discharges of dredged or fill material 

into waters of the United States, and 

how people will use the completed 

activities even though the Corps 

generally has no authority to regulate 

how the constructed facilities are 

operated. These principles apply to the 

three NWPs the Corps is issuing for 

these three utility line sectors. 

One commenter said that the 

proposed changes to NWP 12 and the 

proposed issuance of separate NWPs for 

other types of utility lines are not 

consistent with congressional intent to 

reduce administrative burdens and the 

Administration’s policy on 

infrastructure development and 

maintenance. This commenter cited 

Executive Order 13777, ‘‘Enforcing the 

Regulatory Reform Agenda’’ (February 

24, 2017), Executive Order 13783, 

‘‘Promoting Energy Independence and 

Economic Growth’’ (March 28, 2017), 

and the 2018 ‘‘Legislative Outline for 

Rebuilding Infrastructure in America.’’ 

The Corps believes that this issuance 

of these three NWPs (NWPs 12, 57, and 

58) are consistent with priorities for 

infrastructure development because 

they will help reduce regulatory 

uncertainty and burdens on the 

regulated public. The issuance of these 

NWPs will not cause any increases in 

the number of activities authorized by 

an NWP or the number of activities 

requiring individual permits. The three 

NWPs are consistent in general 

structure, but they have some 

differences because of the different 

types of substances those utility lines 

convey and how those utility lines are 

designed and constructed. 

Several commenters stated that the 

proposed division of NWP 12 activities 

into separate NWPs discourages the 

beneficial and common practice of joint 

trenching and the use of utility corridors 

where various types of utilities are colocated, and further indicated that these 

features should be permissible under 

NWP 12 as a single and complete 

project. Several commenters said that 

the proposal to issue three separate 

NWPs would increase costs and delays 

associated with energy infrastructure 

projects. A few commenters stated that 

the division of NWP 12 into three NWPs 

would increase the number of permits 

needed by some applicants. One 

commenter cited NWP general 

condition 28 as a reason not to divide 

NWP 12 into three different NWPs for 

different types of utility lines. 

The issuance of these three NWPs will 

not discourage joint trenching and the 

use of utility corridors for multiple 

utility lines. For example, if a project 

proponent proposes to construct a water 

line next to an oil or natural gas 

pipeline, the provisions of NWP general 

condition 28, use of multiple NWPs, 

would apply. For each crossing of a 

separate and distant waterbody, both 

NWP 58 and 12 could be used, as long 

as the loss of waters of the United States 

at each single and complete project does 

not exceed 1⁄2-acre. The issuance of 

these three NWPs will not cause 

increased costs and delays for energy 

infrastructure projects, except for a 

relatively brief period of time as the 

transition from the 2017 NWPs to the 

2021 NWPs occurs. The Corps 

acknowledges that there will be some 

increases in the number of permits that 

project proponents will need to obtain, 

but those permits will generally be used 

concurrently, and consistent with 

general condition 28. The use of 

multiple NWPs to authorize single and 

complete projects is a longstanding 

practice in the NWP program. 

A few commenters said that the when 

the Corps considers whether to make 

changes to an established and wellfunctioning NWP program, it should be 

conscious of how changes to the 

framework for permitting utility lines 

will affect the investment community, 

and in turn the country’s ability to 

continue to deliver competitively-priced 

energy from diverse sources to U.S. 

consumers and other end-users, and to 

further domestic energy independence. 

A few commenters remarked that 

pipeline and other infrastructure 

operators need regulatory certainty to 

build, maintain, and upgrade pipelines 

and other utility infrastructure. One 

commenter expressed support for the 

Corps’ efforts to improve the NWP 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2781 

program, but cautioned the Corps to 

avoid changes that could introduce 

inefficiencies. A few commenters said 

that the proposed division of NWP 12 

into three separate NWPs would likely 

introduce unnecessary strain on agency 

resources, delays in the permit reviews, 

regulatory inconsistency in the 

permitting process. One commenter 

objected to dividing the NWP 12 into 

three separate NWPs because they are 

very similar and can be more easily 

tracked and understood as one category. 

The Corps acknowledges that there 

will be some challenges and 

opportunities with these changes to the 

NWP program, but it should also be 

noted that the NWP program changes 

each time the Corps goes through the 

rulemaking process to issue or reissue 

the NWPs and that adjustments need to 

be made under the new NWPs. The 

issuance of NWP 57 will help support 

renewable energy generation facilities 

and the transfer of electricity from those 

generation facilities to residential, 

commercial, industrial, and other users. 

The NWPs will continue to provide 

regulatory certainty for pipelines and 

other types of utility lines. None of 

these three NWPs require agency 

coordination, so other federal agencies 

should not be adversely affected by the 

splitting of NWP 12 into three separate 

NWPs. 

One commenter said that if the Corps 

were to move forward with the division 

of the NWP 12 activities it must take 

into consideration the differences 

between distribution and transmission 

pipelines as the physical characteristics 

of the pipelines inherent in these 

different uses may have a larger effect 

on waters of the United States than the 

material being transported. A few 

commenters suggested that if NWP 12 

were reissued without change, over time 

the use of NWP 12 would shift from oil 

and gas pipelines to other utility sectors 

to account for new investment in more 

secure and resilient utility systems, and 

that a two-year period is an inadequate 

sampling for this decision making effort. 

The Corps does not agree that is 

necessary to address differences 

between distribution and transmission 

pipelines. These NWPs authorize utility 

lines of various sizes, and the Corps 

focuses its analysis of potential adverse 

environmental effects or impacts that 

are caused by the activities that are 

directly related to the Corps’ regulatory 

authority (i.e., discharges of dredged or 

fill material into waters of the United 

States regulated under Section 404 of 

the Clean Water Act and structures and 

work in navigable waters of the United 

States regulated under Section 10 of the 

Rivers and Harbors Act of 1899). The 

Corps does not believe it is useful to 

engage in speculation about potential 

future trends in the number of oil or 

natural gas pipelines versus the number 

of electric utility lines and 

telecommunications lines versus the 

number of utility lines carrying water 

and other substances. The Corps 

estimated the potential permitting 

changes using data on NWP 

verifications issued between March 19, 

2017, and March 19, 2019, which 

provides a robust sample size. 

One commenter said that that, 

according to the Congressional Research 

Service, the Corps does not have a 

centralized database or other 

information on the number of 

individual permits it issues for pipeline 

and utility line projects, nor does it have 

a database on the utility line activities 

that are authorized by NWP 12, and that 

any attempt by the Corps to draw out a 

reasoned, data-driven basis for dividing 

NWP 12 into three separate NWPs is 

premature at this time. 

The Corps does have a centralized 

database that tracks NWP verifications 

issued, regional general permit 

verifications issued, and individual 

permits issued, including the types of 

activities authorized by those general 

permits and individual permits. From 

that data, the Corps was able to estimate 

the number of NWP activities that were 

likely associated with oil or natural gas 

pipelines, electric and 

telecommunications lines, and utility 

lines for water and other substances. 

One commenter stated that dividing 

the NWP 12 would add complexity to 

ESA and NHPA compliance. One 

commenter said that the Corps 

appropriately recognizes that the 

techniques used to construct water and 

electric utility lines have fewer impacts 

to waters of the United States than other 

uses of NWP 12 involving transport of 

petrochemicals. The issuance of these 

three NWPs will not add complexity to 

ESA or NHPA compliance because they 

must comply with the same NWP 

general conditions, including general 

condition 18, endangered species, and 

general condition 20, historic 

properties. A single compliance process 

under either law can serve multiple 

NWPs for those activities that may use 

NWP 12 and 58, for example. 

A few commenters stated that there is 

no logical grouping to be found for 

dividing the proposed NWP activities 

based on pipe diameter, size, and any 

associated ground disturbances. A few 

commenters said that the Corps’ 

information on diameter and pipeline 

lengths are based upon incomplete 

generalizations that do not withstand 

scrutiny. One commenter stated that 

justification for dividing NWP 12 cannot 

be based upon the diameter of the 

pipeline or conduit. One commenter 

remarked that the size of the pipe may 

determine a minimum width of a trench 

but that some smaller pipelines may 

require larger trenches depending on the 

circumstance and that this is not a valid 

criterion for separating the NWPs. One 

commenter said that the Corps failed to 

make a persuasive case that length of a 

utility line would be a determining 

factor when considering ground 

disturbances and division of the NWP 

activities. One commenter said that with 

respect to the Corps’ jurisdiction under 

Section 10 of the Rivers and Harbors Act 

of 1899, it is the presence of a pipeline 

that affects navigation, not the substance 

it contains. 

The discussion in the preamble to the 

2020 Proposal regarding the differences 

among the three utility line sectors that 

were the basis for the modified NWP 12 

and the proposed new NWP C and D 

was intended to demonstrate that there 

are some differences among those 

sectors. The final NWPs are based on 

sectors, not construction techniques or 

sizes of the utility lines. The text of the 

three NWPs makes no references to the 

diameters or length of the utility lines. 

The Corps agrees that for utility lines 

that cross navigable waters of the United 

States and require section 10 

authorization, the Corps focuses its 

evaluation on potential effects on 

navigation, not the substance being 

conveyed by the utility line. 

A few commenters said that the 

Corps’ jurisdiction as related to these 

NWPs is limited to its statutory 

authorities under Section 404 of the 

Clean Water Act and Section 10 of the 

Rivers and Harbors Act of 1899. One 

commenter expressed concern that the 

proposed issuance of separate NWPs 

could lead the Corps to consider factors 

outside of its statutory authority. A few 

commenters stated that consideration of 

the type of substances that can be 

conveyed by a utility constitutes 

overreach of the Corps’ statutory 

jurisdiction. These commenters went on 

to reference statements from the Corps 

that it does not regulate the operation of 

oil and natural gas pipelines, but that 

the Corps regulates discharges of 

dredged or fill material into waters of 

the United States associated with their 

construction. 

The Corps recognizes that under these 

three NWPs the Corps’ statutory 

authority is limited to Section 404 of the 

Clean Water Act and Section 10 of the 

Rivers and Harbors Act. However, for 

these three NWPs and many of the other 

NWPs, the categories of activities 

authorized by those NWPs relate to how 

2782 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

the constructed activities will be used 

(e.g., residences for NWP 29, 

recreational facilities for NWP 42, landbased renewable energy generation for 

NWP 51), even though the Corps does 

not have the authority to regulate the 

operation of the constructed structure or 

fill. As discussed above, the text of 

section 404(e) recognizes that the 

Secretary could issue any number of 

general permits, including NWPs, for 

any number of categories of activities 

involving discharges of dredged or fill 

material into waters of the United 

States. 

A few commenters said that the terms 

used to describe the applicability of 

NWP 12 cause ambiguous situations 

with respect to which substances would 

qualify as oil, gas, or petrochemicals 

and to which NWP would apply. These 

commenters also indicated confusion 

associated with common situations 

where petrochemical products are 

added to non-petroleum products prior 

to transport and generally suggested the 

source of the material to be transported 

has little or no bearing on the methods 

for construction, maintenance, repair or 

replacement of the pipeline on the best 

management practices needed to protect 

waters of the United States. 

The Corps has attempted to provide 

more clarity regarding the 

differentiation of utility line sectors that 

would fall under NWPs 12, 57, or 58. 

The Corps recognizes that there may be 

situations where a prospective permittee 

may be unsure which NWP applies. The 

prospective permittee could coordinate 

with the appropriate Corps district to 

get assistance in identify which NWP 

would be most appropriate for a 

particular project. If the project 

proponent is contemplating 

constructing different types of utility 

lines for a particular project, multiple 

NWPs could be used as long as the 

project proponent complies with NWP 

general condition 28, which addresses 

use of multiple NWPs for a single and 

complete project. 

General Comments on Best Management 

Practices 

A few commenters supported the 

incorporation of specific best 

management practices (BMPs) for the 

utility line NWPs. A few commenters 

said that adding additional BMPs or 

standards to this NWP would result in 

redundant requirements to manage on 

these projects without providing 

additional benefits. A few commenters 

said that division engineers can tailor 

standards to meet region-specific needs 

and issue additional regional conditions 

with their discretionary authority. One 

commenter stated that the BMPs for 

protecting water features during 

trenching, boring, or sleeving 

construction methods for installing, 

replacing, or maintaining pipes at 

stream or wetland crossings are similar 

in nature, regardless of what product 

will travel in the pipeline once 

construction is completed. One 

commenter stated that the three 

categories of utility lines under 

proposed NWPs 12, C, and D, would 

authorize sufficiently similar activities 

and require the same or similar 

environmental provisions in order to 

meet the no more than minimal impacts 

requirement under section 404(e) of the 

Clean Water Act. One commenter said 

that because of the overarching federal 

regulatory regime, NWP 12 and its 

general conditions, regional conditions 

added by division engineers, and 

applicable state requirements there are 

no additional BMPs that could be 

practically or lawfully added to NWP 

12. 

The Corps agrees that there are no 

national best management practices to 

add to NWPs 12, 57, and 58. As 

discussed below, a few commenters 

submitted suggestions for best 

management practices. The Corps has 

considered those best management 

practices, and has concluded that best 

management practices are more 

appropriately addressed as regional 

conditions added to the NWPs by 

division engineers or activity-specific 

conditions added NWP authorizations 

by district engineers. 

A few commenters said that imposing 

additional best management practice 

requirements would risk conflict or 

redundancy with other applicable 

regulations. A few commenters 

suggested that the if the Corps were to 

become aware of best management 

practices to add to NWP 12 then it 

should conduct a subsequent notice and 

comment procedure for these BMPs as 

none were specifically proposed. A few 

commenters indicated that a 60-day 

notice is inadequate for stakeholders 

and agencies to compile BMPs and best 

available science for the invitation to 

comment. One commenter 

recommended that the Corps maintain 

the existing NWPs and instead conduct 

an extensive outreach campaign to 

stakeholders to determine BMPs for the 

utility line NWPs. One commenter said 

that when developing industry specific 

standards and BMPs, the duration and 

location of temporary fill impacts across 

a project site should be taken into 

consideration. One commenter 

requested that the Corps provide 

examples the types of construction 

methods for access roads that are 

considered to minimize adverse effects 

to waters of the United States as noted 

in several NWPs. 

The Corps has decided not to add any 

best management practices to NWPs 12, 

57, and 58. After reviewing the BMPs 

suggested by commenters, the Corps 

determined that the text of these NWPs 

already include some common BMPs, 

such as requiring the top 6 to 12 inches 

of the trench to normally be backfilled 

with topsoil from the trench, 

constructing the trench so that it does 

not drain waters of the United States 

through a French drain effect, or 

stabilizing exposed slopes and stream 

banks immediately after completion of 

construction of the stream crossing. 

Comments on Best Management 

Practices for NWP 12 

One commenter said that impacts 

from work on natural gas pipelines and 

gas utility lines are minimal and 

temporary, and BMPs under the existing 

NWP 12 protect waters of the United 

States. One commenter stated that if the 

Corps decides to impose any BMPs on 

interstate natural gas pipelines they 

must not conflict with the FERC’s Plan 

and Procedures. Several commenters 

stated that The U.S. Department of 

Transportation (DOT) Pipeline and 

Hazardous Materials Safety 

Administration (PHMSA) Office of 

Pipeline Safety imposes stringent 

pipeline safety regulations under 49 

CFR part 192 on natural gas interstate 

transmission pipelines and gas utility 

intra-state natural gas transmission and 

distribution utility lines. One 

commenter stated that the 2017 NWP 12 

provides adequate environmental 

protections under Section 404 of the 

Clean Water Act and Section 10 of the 

Rivers and Harbors Act of 1899, and that 

no additional industry-specific 

standards or BMPs should be added to 

the NWPs as national enforceable terms. 

One commenter stated that pipeline 

rights-of-way should be maintained in 

herbaceous condition within 10-feet 

centered on the pipeline. One 

commenter stated that applicants 

should have to produce containment 

and clean up contingency plans as 

BMPs for all of the utility line permits. 

One commenter said that a trench 

should not be constructed or backfilled 

in a matter that would redirect shallow 

groundwater flow paths, to avoid 

altering vegetative communities or flow 

in streams downslope of the trenches. 

One commenter said that appropriate 

measures should be taken to maintain 

water quality conditions downstream of 

the site. 

As discussed above, the Corps is not 

adding any BMPs to the text of NWPs 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2783 

12, 57, and 58 that were not in the 

proposed texts of these NWPs. 

Best management practices 

recommendations. One commenter said 

that a list of BMP manuals that support 

oil and gas pipeline development and 

maintenance activities in Appendix G of 

the document titled ‘‘Considering Best 

Practices for Managing Pipeline 

Permitting.’’ Several of these documents 

are excellent resources for best 

management practices related to 

impacts to wetlands and streams. One 

commenter recommended the following 

BMPs for NWP 12: 

• All excavations should be 

backfilled with the excavated material 

after installation of the appropriate 

structures. 

• Side-cast spoil material from trench 

excavation should be placed on the side 

of the trench opposite streams and 

wetlands. 

• Spoil material from trench 

excavation should be placed on the side 

of the trench to be reused as backfill 

with the A-horizon placed back in its 

original position. 

• Excess spoil material must be 

removed to an approved upland 

disposal site. 

• Stream banks at crossings must be 

restored after construction has been 

completed. 

• Disturbed stream banks can be 

restored by planting woody vegetation 

and by using bioengineering techniques 

for stream bank stabilization. 

• Right-of-ways through and adjacent 

to streams and through forested 

wetlands should be maintained in low 

growing, woody vegetation to minimize 

erosion and sedimentation. 

Maintenance of this right-of-way should 

be conducted with mowing rather than 

with chemicals to reduce the potential 

for contamination and negative impacts 

on aquatic resources. 

• If chemicals are used, a 50-foot 

buffer on either side of the stream 

crossing should be established in order 

to retain the riparian vegetation while 

reducing the amount of chemical runoff 

into the aquatic environment. 

• Any open trench must be 

temporarily fenced to reduce the 

likelihood of wildlife becoming trapped 

and must include a ramped section 

which would allow wildlife to escape. 

• A full visual inspection of every 

open trench section must be made daily 

to identify any trapped wildlife in need 

of rescue. 

One commenter provided an example 

list of industry BMPs, but indicated that 

should the Corps chose to incorporate 

them in the text of NWP 12 and the 

other utility NWPs, it must understand 

that all BMPs are not appropriate to all 

circumstances. This commenter 

provided the following list of BMPs: 

• Requiring, where appropriate, a 

plan to address the prevention, 

containment, and cleanup of sediment 

or other materials caused by inadvertent 

returns of drilling fluids. 

• Requiring notification to the Corps 

and implementation of a remediation 

plan in the event of an inadvertent 

return of drilling fluids. 

• Siting poles and tower foundations 

outside of surface waters where 

practicable. 

• Visually marking waters of the 

United States near work areas. 

• Using techniques that minimize 

rutting and damage to wetlands, such as 

installing mats prior to placing or 

driving equipment over wetlands or 

streams for temporary access or using 

wide-track equipment. 

• Establishing stockpiling/work areas 

outside of surface waters. 

• Construction monitoring during 

routine inspection and maintenance 

activities to avoid unauthorized 

discharges into surface waters. 

A few commenters suggested 

modifying the text of NWP 12 to 

encourage the use of directional drilling. 

One commenter said that when 

horizontal directional drilling (HDD) is 

not possible, the flume method should 

be the required method for use of the 

NWP 12 over the dam-and-pump or 

open-cut stream crossing methods in 

order to minimize impacts to aquatic 

resources. One commenter suggested 

when HDD is used the permittee should 

erect sediment control measures 

between the drill site and nearby 

sensitive resources to prevent drilling 

mud releases from reaching sensitive 

resources, conduct regular on-site 

briefings for personnel to identify and 

locate sensitive resources, and maintain 

response equipment on-site or in an 

accessible location and in good 

working-order. One commenter 

suggested that HDD contractors should 

be required to employ a full-time, 

qualified on-site mud engineer to 

continuously monitor the drilling fluid 

circulation and returns as a preventative 

measure. 

The Corps declines to add text to 

NWPs 12, 57, and 58 to encourage 

horizontal directional drilling. The use 

of horizontal directional drilling is more 

appropriately determined on a case-bycase basis. The Corps lacks the authority 

to require HDD contractors to employ a 

full-time, qualified on-site mud engineer 

to monitor drilling fluid circulation and 

potential inadvertent returns of drilling 

fluid. 

One commenter said that Congress 

did not intend the NWP program to be 

used to streamline the authorization of 

major infrastructure projects and that 

each water crossing for major pipeline 

projects that transport highly toxic and 

dangerous materials should require 

individual permit reviews. A few 

commenters stated that environmental 

impact statements should be required 

for oil or natural gas pipelines. One 

commenter said that a programmatic 

ESA consultation should be completed 

for this NWP. One commenter stated 

that the construction and operation of 

oil and gas pipelines pose significant 

risk to protected species and should 

require individual permits. Another 

commenter said that the Corps must 

determine the environmental safety of 

HDD at a particular location and 

associated mitigation measures. One 

commenter suggested a definition for 

‘‘stand-alone project’’ to require that all 

the crossings within major watersheds 

are evaluated together as single and 

complete since the cumulative impacts 

would be to one system. 

Section 404(e) of the Clean Water Act 

provides the Corps with the authority to 

issue NWPs to authorize categories of 

activities involving discharges of 

dredged or fill material into waters of 

the United States to streamline the 

authorization process for these 

activities, as long as they result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. Section 404(e) does not prohibit 

the issuance of general permits for 

utility lines and other infrastructure 

projects. As many commenters 

recognized, the Corps does not have the 

discretion to control the types of 

substances conveyed by oil or natural 

gas pipelines or other types of utility 

lines. Compliance with the Endangered 

Species Act is discussed in Section III.D 

of this final rule: Compliance with 

Relevant Statutes. The Corps declines to 

add a definition of ‘‘stand-alone project’’ 

because cumulative impacts are already 

evaluated by district engineers over 

appropriate geographic regions, such as 

watersheds, Corps districts, states, etc. 

A few commenters stated that NWP 

12 should be revised to consider the 

protection of tribal treaty rights. One 

commenter said that the Corps should 

conduct tribal consultation for the 

reissuance of the NWP 12. One 

commenter suggested the Corps adopt a 

policy of early consultation with Indian 

Tribes and other actors on these types 

of projects, above the timeline required 

by the NHPA section 106 process to 

allow the Corps to preemptively address 

concerns and avoid delays, litigation, 

and other increased costs. One 

commenter said that the draft NWP 12 

decision document fails to address the 

2784 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

high correlation of pipeline construction 

projects with rates of missing and 

murdered Indigenous women and 

children and indicated that the Corps 

had not consulted the tribes on the 

matter. One commenter stated that there 

are a variety of utility lines that have 

direct, indirect, and cumulative impacts 

on treaty reserved resources and that the 

proposed changes require additional 

review to fully understand the extent of 

potential resource impacts. One 

commenter requested the Corps 

continue to require PCNs in Washington 

State to adequately protect treaty 

resources. 

Tribal treaty rights are addressed 

through NWP general condition 17 for 

all NWPs, including NWP 12. 

Consultation with tribes on the 

proposed NWPs is discussed in Section 

V of this final rule (Administrative 

Requirements), in the section for E.O. 

13175. The draft decision document 

does not discuss pipeline construction 

projects and missing and murdered 

people because that issue is more 

appropriately addressed by local, state, 

tribal, and federal law enforcement 

officials. Concerns about potential 

impacts to treaty resources in 

Washington State are more 

appropriately addressed through 

regional conditions, which can add PCN 

requirements to this NWP, where 

appropriate. 

This NWP is reissued with the 

modifications discussed above. 

(2) NWP 21. Surface Coal Mining 

Activities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed (discussed 

above in Section II.F), remove the 

reference to integrated permit 

processing procedures, and remove the 

requirement for the permittee to obtain 

written verification from the district 

engineer so that the 45-day PCN review 

period would apply to this NWP as it 

does to other NWPs with 1⁄2-acre limits 

for losses of waters of the United States. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. 

Many commenters opposed removing 

the provision that requires a written 

verification from the district engineer 

before commencing the authorized 

activity, instead of allowing a default 

authorization to occur if the Corps does 

not respond to a complete PCN within 

45 days. Several commenters expressed 

support for the default authorization to 

occur if the district engineer does not 

respond to the PCN within 45 days. 

Many commenters opposed removal of 

the PCN requirements from this NWP. 

One commenter said that in order to 

further expedite permitting for a coal 

mining project, no PCNs should be 

required. 

The Corps removed the requirement 

for the permittee to obtain written 

authorization before commencing the 

activity to be consistent with the other 

NWPs that have a 1⁄2-acre limit for 

discharges of dredged or fill material 

into non-tidal waters of the United 

States (e.g., NWPs 29, 39, 40, 42, 43, 44, 

51, and 52). The Corps did not propose 

to remove any PCN requirements from 

this NWP. All activities authorized by 

this NWP require PCNs. 

One commenter stated support for the 

language regarding integrated permitting 

processing procedure language. One 

commenter requested addition of text to 

the NWP stating that no work can begin 

until formally approved by the U.S. 

Department of Interior or the state, and 

final approval is not necessary before 

submitting a PCN to the district 

engineer. One commenter said that 

NWP 21 should be expanded to include 

a requirement for federal and state 

agency coordination when pitcher plant 

bog wetlands, bald cypress, and/or 

tupelo swamps are impacted. This 

commenter also stated that this NWP 

should not authorize discharges of 

dredged or fill material into these types 

of wetlands. 

The Corps removed the language 

referencing integrated permit processing 

procedures, since those procedures have 

never been developed for this NWP 

since that text was added to the NWP in 

2007 (see 72 FR 11184). Project 

proponents may be required to obtain 

separate authorizations from the 

Department of Interior’s Office of 

Surface mining or the state, but those 

authorizations are a separate process 

from the Corps’ NWP authorization 

process. Authorization by an NWP does 

not obviate the need to obtain other 

federal, state, or local permits, 

approvals, or authorizations required by 

law. (See item 2 in Section E, Further 

Information.) Division engineers can 

add regional conditions to this NWP to 

restrict or prohibit discharges of 

dredged or fill material into certain 

wetland types if those discharges are 

likely to result in more than minimal 

individual and cumulative adverse 

environmental effects. District engineers 

can also exercise discretionary authority 

to modify, suspend, or revoke an NWP 

after reviewing the PCN, to ensure that 

the NWP authorizes only those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

Several commenters said that NWP 21 

should be revoked because the adverse 

effects of surface coal mining on the 

environment are significant. One 

commenter objected to the removal of 

stream mitigation requirements. One 

commenter said that the applicant 

should be required to ensure that toxic 

substances are not released back into the 

water column through re-exposure from 

dredge activities. Several commenters 

said that the proposed changes to this 

NWP unlawfully put the interests of the 

regulated public above the Corps 

statutory mandate to protect the 

environment. 

The activities authorized by this NWP 

cannot result in the loss of greater than 

1⁄2-acre of non-tidal waters of the United 

States, excluding non-tidal wetlands 

adjacent to tidal waters. In addition, all 

activities authorized by this NWP 

require PCNs. The 1⁄2-acre limit, the 

PCN requirements, and the ability of 

division and district engineers to 

modify, suspend, or revoke this NWP on 

a regional or activity-specific basis 

ensure that the activities authorized by 

this NWP result in no more than 

minimal adverse environmental effects. 

The Corps did not propose to remove 

any stream mitigation requirements 

from this NWP. Despite the changes to 

this NWP, these activities are reviewed 

by district engineers on a case-by-case 

basis since all activities require PCNs. 

This NWP is reissued as proposed. 

(3) NWP 29. Residential Developments 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. 

One commenter said that this NWP 

should clarify that the acreage limits are 

applied cumulatively for both the 

original construction and any 

subsequent expansion of the 

development. One commenter stated 

that this NWP should not be issued to 

developments proposed in channel 

migration zones and floodplains where 

projects can directly and indirectly 

impact essential fish habitat, critical 

habitat, and habitats occupied by 

federally threatened or endangered 

species. One commenter said that as a 

result of climate change, residential 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2785 

developments have increased the public 

safety risk. One commenter asked if 

projects occurring in floodplains and 

authorized by this NWP are consistent 

with the 2008 biological opinion on the 

Federal Emergency Management 

Agency’s National Flood Insurance 

Program. 

This NWP includes a subdivision 

provision, which states that for 

residential subdivisions, the aggregate 

total loss of waters of the United States 

authorized by this NWP cannot exceed 

1⁄2-acre, including any loss of waters of 

the United States associated with the 

development of individual subdivision 

lots. Activities authorized by this NWP 

must comply with general condition 10, 

fills within 100-year floodplains. If the 

district engineer reviews the PCN and 

determines that the proposed activity 

may adversely affect essential fish 

habitat, he or she will initiate essential 

fish habitat consultation with the 

NMFS. If the district engineer reviews 

the PCN and determines the proposed 

activity may affect ESA-listed species or 

designated critical habitat, she or he 

will initiate section 7 consultation with 

the U.S. FWS and/or NMFS as 

appropriate (see general condition 18). 

Potential public safety risks associated 

with residential developments are more 

appropriately addressed by local or state 

land use planning and zoning agencies. 

The 2008 biological opinion on the 

Federal Emergency Management 

Agency’s National Flood Insurance 

Program only applies to that program. It 

does not directly apply to the Corps’ 

NWP program. 

One commenter said that authorizing 

residential developments with golf 

courses results in devastating impacts 

on the environment through habitat loss 

and fragmentation, nutrient loading that 

causes algal blooms, and the use of 

pesticides/herbicides, which must be 

considered under an environmental 

impact statement, and therefore, should 

require an individual permit. One 

commenter stated that a 1⁄2-acre loss of 

waters of the United States is not 

minimal and that any loss over 1⁄10-acre 

should require compensatory 

mitigation. One commenter said that 

compensatory mitigation should be 

required for all unavoidable impacts to 

wetlands and streams authorized by this 

NWP. One commenter said that if the 

Corps does not require compensatory 

mitigation under NWP 29, the adverse 

environmental effects are more than 

minimal. One commenter said that the 

reliance on compensatory wetland 

mitigation often leads to a net loss of 

wetland functions and values and that 

NWPs like NWP 29 could lead to the 

loss of thousands of acres of wetlands. 

The Corps regulates discharges of 

dredged or fill material into waters of 

the United States, and this NWP limits 

those discharges to non-tidal waters of 

the United States. If the proposed NWP 

29 activity includes the construction of 

a golf course, the district engineer will 

review the PCN and determine whether 

the proposed activity qualifies for NWP 

authorization. The Corps does not have 

the authority to regulate the use of 

pesticides or herbicides, and therefore is 

not required to consider the potential 

use of pesticides or herbicides when 

reviewing PCNs for proposed activities. 

Nutrient loading can be the result of 

non-point source pollution. Nutrient 

loading may also result from discharges 

of certain substances from point sources 

regulated under Section 402 of the 

Clean Water Act, which is administered 

by states with approved programs or the 

U.S. EPA. General condition 23 requires 

compensatory mitigation for all wetland 

losses greater than 1⁄10-acre that require 

PCNs, unless the district engineer 

determines that some other form of 

mitigation would be more 

environmentally appropriate. Wetland 

compensatory mitigation projects 

required for activities authorized by the 

NWPs must comply with the Corps’ 

regulations at 33 CFR part 332, which 

require monitoring and other actions to 

ensure that the required compensatory 

mitigation offsets the permitted wetland 

losses. 

One commenter said the array of 

wetland and water types that authorized 

under NWP 29 and lost are varied and 

that the Corps cannot determine 

environmental effects are minimal when 

they are speculative and unquantifiable. 

One commenter stated that the 

cumulative impacts of authorizing large 

residential driveways in waters of the 

United States threatens nearshore 

benthic habitat that is important to 

salmonids. One commenter said that it 

is unclear how permit authorizations are 

coordinated with local agencies to 

ensure the appropriate use of NWP 29 

and that local protections should apply 

to the permit. 

All activities authorized by this NWP 

require PCNs. Therefore, district 

engineers review all proposed activities 

and determine whether those activities 

qualify for NWP authorization. When 

reviewing PCNs, district engineers 

consider cumulative adverse 

environmental effects caused by 

activities authorized by an NWP and 

whether those cumulative adverse 

effects are no more than minimal (see 

paragraph 2 of Section D, District 

Engineer’s Decision). If the proposed 

NWP activity may affect ESA-listed 

species, including list salmon species, 

the district engineer conducts ESA 

section 7 consultation with the U.S. 

FWS or NMFS, as appropriate. 

Nationwide permit 29 authorizations are 

not coordinated with local agencies. As 

stated in Section E, Further Information, 

the NWPs do not obviate the need to 

obtain other federal, state, or local 

permits, approvals, or authorizations 

required by law. 

This NWP is reissued as proposed. 

(4) NWP 39. Commercial and 

Institutional Developments 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. 

Several commenters recommended 

establishing tailored PCN thresholds for 

NWP that are similar to the PCN 

thresholds in NWP 12, NWP 14, and 

NWP 51, which only require PCN for 

losses of waters of the United States 

greater than 1⁄10-acre. Due to the current 

requirement for PCNs for all NWP 39 

activities, this NWP is underutilized 

and increasing the PCN threshold to 1⁄10- 

acre would incentivize project 

proponents to reduce impacts. A couple 

of commenters said that compensatory 

mitigation should be required for all 

unavoidable impacts to streams, 

wetlands, and special aquatic sites 

authorized by NWP 39. One commenter 

stated that commercial developments 

have the potential to cause significant 

environmental harm through habitat 

loss and fragmentation and should be 

assessed in environmental impact 

statements and through programmatic 

ESA section 7 consultations. One 

commenter said that commercial 

developments constructed in channel 

migration zones and floodplains, areas 

occupied or critical to salmon 

populations, should be required to 

obtain individual permits. 

The Corps believes that this NWP 

should continue to require PCNs for all 

activities, so that district engineers can 

review all proposed commercial and 

institutional developments involving 

discharges of dredged or fill material 

into waters of the United States and 

determine which proposed activities 

can be authorized by NWP 39 and 

which proposed activities should 

require individual permits. The 

streamlined authorization process 

2786 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

provided by NWP 39 continues to 

incentivize project proponents to reduce 

losses of waters of the United States to 

qualify for NWP authorization instead of 

having to obtain individual permits for 

those activities, and the increased time 

and paperwork needed to secure those 

individual permits. When evaluating 

PCNs, district engineers determine 

whether proposed NWP 39 activities 

should require compensatory mitigation 

or other forms of mitigation to ensure 

that those activities result in no more 

than minimal adverse environmental 

effects. Compensatory mitigation 

requirements are determined on a caseby-case basis by district engineers. If the 

district engineer determines a proposed 

NWP 39 activity will result in more than 

minimal adverse environmental effects 

after considering mitigation proposed by 

the permit applicant, he or she will 

exercise discretionary authority and 

require an individual permit for the 

proposed activity. During the individual 

permit process, the district engineer will 

determine whether NEPA compliance 

will be achieved through the 

preparation of an environmental impact 

statement or environmental assessment, 

unless the proposed activity qualifies 

for a categorical exclusion. The district 

engineer will also evaluate the PCN to 

determine if the proposed activity may 

affect listed species or designated 

critical habitat, and thus require ESA 

section 7 consultation with the U.S. 

FWS or NMFS, as appropriate. 

Activities authorized by this NWP must 

comply with general condition 10, fills 

in 100-year floodplains. 

This NWP is reissued as proposed. 

(5) NWP 40. Agricultural Activities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. 

One commenter stated that losses of 

waters and wetlands up to 1⁄2-acre are 

not minimal. One commenter said that 

any impacts greater than 1⁄10-acre should 

require compensatory mitigation. 

Another commenter said that this NWP 

and other NWPs does not adequately 

address cumulative impacts and these 

activities should require individual 

permits. One commenter requested that 

the Corps require best management 

practices to prevent and reduce nonpoint source pollution associated with 

agricultural activities. One commenter 

said that all agricultural activities 

authorized by this NWP should go 

through an alternatives analysis for 

channelization or dam construction to 

support fish passage and healthy stream 

systems. One commenter stated that the 

authorization of some activities under 

this NWP, such as levees, is inconsistent 

with Federal Emergency Management 

Agency flood requirements or policies. 

One commenter said that allowing these 

impacts under current watershed 

conditions and salmon population 

status is excessive. 

All activities authorized by this NWP 

require PCNs. District engineers will 

review each proposed activity and 

determine which activities will result in 

no more than minimal individual and 

cumulative adverse environmental 

effects and are authorized by this NWP 

and which activities do not qualify for 

NWP authorization and should require 

individual permits. During their reviews 

of PCNs, district engineers consider 

cumulative impacts caused by activities 

authorized by this NWP (see paragraph 

2 of Section D, District Engineer’s 

Decision). The Corps lacks the authority 

to require agricultural producers to 

implement best management practices 

to control non-point source pollution. 

The NWPs do not require alternatives 

analyses since they can only authorize 

activities that have no more than 

minimal adverse environmental effects. 

If a project proponent is considering 

channelizing a stream or constructing a 

dam, the district engineer will review 

the PCN and determine whether the 

proposed activity will result in no more 

than minimal adverse environmental 

effects. Activities authorized by this 

NWP must comply with general 

condition 10, fills in 100-year 

floodplains. The Corps does not have 

the discretion to enforce flood 

requirements or policies adopted by the 

Federal Emergency Management 

Agency. If the district engineer 

determines that a proposed NWP 40 

activity may affect salmon listed under 

the ESA, he or she will conduct ESA 

section 7 consultation with the U.S. 

FWS or NMFS, as appropriate, before 

issuing an NWP verification letter. 

This NWP is reissued as proposed. 

(6) NWP 42. Recreational Facilities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. 

One commenter said that large 

recreational facilities (golf courses) or 

non-passive recreational facilities 

should require individual permits in 

non-tidal waters and stream channels, 

in channel migration zones, and waters 

used or in the historic range of listed 

species, or that directly or indirectly 

impact critical or essential fish habitat. 

Allowing these impacts under current 

watershed conditions and salmon 

population status is excessive. 

This NWP requires PCNs for all 

proposed activities. District engineers 

will review all PCNs to determine 

whether the discharges of dredged or fill 

material into waters of the United States 

to construct or expand recreational 

facilities will result in no more than 

minimal adverse environmental effects. 

If the district engineer determines a 

proposed activity may affect ESA-listed 

species or designated critical habitat, 

she or he will conduct ESA section 7 

consultation with the U.S. FWS or 

NMFS, as appropriate, prior to issuing 

the NWP verification or deciding 

whether to exercise discretionary 

authority to require an individual 

permit. If the district engineer reviews 

the PCN and determines the proposed 

activity may adversely affect essential 

fish habitat, he or she will conduct 

essential fish habitat consultation with 

the NMFS. 

This NWP is reissued as proposed. 

(7) NWP 43. Stormwater Management 

Facilities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. In the first paragraph 

of this NWP, the Corps also proposed to 

add the phrase ‘‘such as features 

needed’’ before ‘‘to meet reduction 

targets established under Total 

Maximum Daily Loads set under the 

Clean Water Act.’’ 

One commenter supported adding the 

phrase ‘‘such as features needed’’ to the 

first paragraph to clarify that green 

infrastructure type of features are not 

just to reduce total maximum daily 

loads. Several commenters said that this 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2787 

NWP should be reissued with no 

changes except for a clarifying provision 

related to green infrastructure as states 

and municipalities may require or allow 

green infrastructure projects to meet 

water quality criteria, designated uses, 

and compliance with post-construction 

stormwater requirements regardless of 

whether a total maximum daily load 

applies to the receiving water. 

The Corps has added the phrase 

‘‘such as features needed’’ to this NWP. 

The Corps agrees that states and 

municipalities may require, under their 

authorities, the construction and 

implementation of green infrastructure 

projects to meet water quality criteria, 

designated uses, and compliance with 

post-construction stormwater 

requirements. If the construction and 

maintenance of those green 

infrastructure projects involves 

discharges of dredged or fill material 

into waters of the United States, this 

NWP can be used to authorize those 

activities. 

One commenter said that for new 

stormwater management facilities, best 

management practices are required as a 

general matter to prevent non-point 

source pollution during and after 

construction activities. One commenter 

stated that allowing the loss of 1⁄2-acre 

of non-tidal waters under current 

watershed conditions and salmon 

population status is excessive. This 

commenter said that these facilities 

should not be located in wetlands or 

intermittent or ephemeral streams 

adjacent to perennial streams that are 

occupied by salmon, especially ESAlisted species. This commenter asserted 

that these actions should require 

individual permits when located in 

channel migration zones, or floodplains, 

wetlands, and essential fish habitat. 

Measures undertaken to prevent nonpoint source pollution during and after 

construction activities may be required 

by state or local governments, or by 

other federal agencies. The Corps does 

not have the authority to regulate nonpoint source pollution that may reach 

waters and wetlands. Except for certain 

maintenance activities, all activities 

authorized by this NWP require preconstruction notification to the district 

engineer. For those activities that 

require PCNs, the district engineer will 

evaluate potential impacts to salmon, 

and if the salmon include ESA-listed 

species, the district engineer will 

determine if the proposed activity may 

affect listed salmon, and engage in ESA 

section 7 consultation with the U.S. 

FWS or NMFS as appropriate. Activities 

authorized by this NWP must comply 

with general condition 10, fills in 100- 

year floodplains. If, during the review of 

a PCN, the district engineer determines 

the proposed activity may adversely 

affect essential fish habitat, she or he 

will initiate essential fish habitat 

consultation with the NMFS. 

This NWP is reissued as proposed. 

(8) NWP 44. Mining Activities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed. The Corps also 

proposed to remove the ability for 

district engineers to waive the 300 

linear foot limit for losses of 

intermittent and ephemeral stream bed. 

Comments received on the proposed 

removal of the 300 linear foot limit for 

losses of stream bed are summarized in 

Section II.F of this final rule, and in that 

section the Corps provided responses to 

those comments. In addition, the Corps 

proposed to modify paragraph (b) of this 

NWP to apply the 1⁄2-acre limit to work 

in non-tidal navigable waters of the 

United States (i.e., section 10 waters). 

One commenter said the Corps should 

not reissue NWP 44 because it is in 

violation of Section 404(e) of the Clean 

Water Act. A few commenters stated 

that NWP 44 poses a risk of significant 

direct and cumulative harm and these 

activities should be authorized by 

individual permits, not an NWP. One 

commenter recommended requiring 

applicants ensure that toxic substances 

are not released back into waters 

through re-exposure from dredging. 

All activities authorized by this NWP 

require PCNs. District engineers will 

review PCNs for proposed activities to 

ensure that those activities will result in 

no more than minimal individual and 

cumulative adverse environmental 

effects, and therefore comply with 

section 404(e) of the Clean Water Act. 

One commenter said that the Corps 

should allow use NWP 44 in tidal 

waters to reduce cost and time 

associated with obtaining individual 

permits. One commenter expressed 

support for including activities in nontidal section 10 waters. One commenter 

stated that the addition of activities in 

non-tidal section 10 waters needs 

clarification. This commenter said this 

may be a new requirement that is not 

currently regulated and thus may 

impact industrial mineral mining. 

Mining activities in tidal waters have 

potential for causing more than minimal 

individual and cumulative effects, and 

from a national perspective should be 

evaluated under the individual permit 

process. However, district engineers can 

develop and issue regional general 

permits to authorize mining activities in 

tidal waters in areas where these 

activities usually result in no more than 

minimal adverse environmental effects. 

The Corps is retaining the proposed 

clarification in paragraph (b) of this 

NWP, with respect to the NWP 

authorizing work in non-tidal navigable 

waters of the United States (i.e., section 

10 waters). The clarification regarding 

work in section 10 waters was added 

because the Corps’ definition of ‘‘work’’ 

at 33 CFR 322.2(c) for the purposes of 

Section 10 of the Rivers and Harbors Act 

of 1899 includes ‘‘without limitation, 

any dredging or disposal of dredged 

material, excavation, filling, or other 

modification of a navigable water of the 

United States.’’ 

One commenter said that this NWP 

should not authorize activities in waters 

inhabited by salmon. A few commenters 

stated that the Corps must consider the 

numerous proposals for sulfide-ore 

copper mining in Minnesota and 

Wisconsin in light of unique lake-land 

system that is highly susceptible to 

mining caused pollution and 

degradation. 

All activities authorized by this NWP 

require pre-construction notification. 

District engineers will review PCNs for 

proposed activities and determine 

whether they may affect ESA-listed 

species or designated critical habitat. If 

the district engineer determines a 

proposed NWP 44 activity may affect 

listed species or designated critical 

habitat, he or she will conduct ESA 

section 7 consultation with the U.S. 

FWS or NMFS as appropriate. Proposals 

for mining activities in Minnesota and 

Wisconsin are evaluated by the Corps’ 

St. Paul District. 

This NWP is reissued as proposed. 

(9) NWP 48. Commercial Shellfish 

Mariculture Activities 

The Corps proposed a number of 

modifications to this NWP. The Corps 

proposed to change the title of this NWP 

from ‘‘Commercial Shellfish 

Aquaculture Activities’’ to ‘‘Commercial 

Shellfish Mariculture Activities’’ to 

more accurately reflect where these 

activities are conducted (i.e., coastal 

waters). The Corps also proposed to 

remove the 1⁄2-acre limit for new 

activities that have direct effects on 

submerged aquatic vegetation in project 

areas that that have not been used for 

commercial shellfish aquaculture 

activities during the past 100 years. In 

addition to the proposed removal of that 

1⁄2-acre limit, the Corps proposed to 

remove the definition of ‘‘new 

commercial shellfish aquaculture 

operation’’ that was adopted in 2017. 

Also, the Corps proposed to remove 

both PCN thresholds for this NWP, as 

well as the paragraph that identifies the 

additional information that permittees 

must submit with their NWP 48 PCNs. 

2788 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

The Corps changed the title of this 

NWP to ‘‘Commercial Shellfish 

Mariculture Activities’’ because the 

NWP only authorizes activities in 

coastal waters. Mariculture is the 

cultivation of organisms in marine and 

estuarine open water environments 

(NRC 2010). The term ‘‘aquaculture’’ 

refers to a broad spectrum of production 

of aquatic organisms. In the United 

States aquaculture activities encompass 

the production of marine and freshwater 

finfish, as well as shellfish (bivalve 

molluscs and crustaceans). Oysters, 

clams, mussels, and scallops are 

examples of bivalve molluscs (bivalves). 

Since aquaculture activities in the 

United States include both water-based 

and land-based activities, we use the 

term ‘‘mariculture’’ in NWPs 48, 55 

(seaweed mariculture activities), and 56 

(finfish mariculture activities) to make it 

clear that these NWPs only authorize 

activities in marine and estuarine 

waters. 

In response to the October 10, 2019 

decision of the United States District 

Court, Western District of Washington at 

Seattle in the Coalition to Protect Puget 

Sound Habitat v. U.S. Army Corps of 

Engineers et al. (Case No. C16–0950RSL) 

and Center for Food Safety v. U.S. Army 

Corps of Engineers et al. (Case No. C17– 

1209RSL), the Corps has made 

substantial revisions to the national 

decision document for NWP 48. The 

revisions addressed, to the extent 

appropriate, issues identified in the 

district court’s decision. A copy of the 

final national decision document is 

available in the docket at 

www.regulations.gov (COE–2020–0002). 

The national decision document for 

the 2021 NWP 48 provides a more 

thorough discussion of the direct and 

indirect impacts caused by commercial 

shellfish mariculture activities. The 

national decision document also uses a 

broader set of scientific literature to 

support that discussion of potential 

effects to various resources and the 

human environment. The national 

decision document does not focus solely 

on oyster mariculture; rather, it also 

discusses mariculture activities for other 

bivalve species, such as clams, mussels, 

and scallops. The national decision 

document presents a more detailed 

discussion of the potential impacts of 

commercial shellfish mariculture 

activities on aquatic vegetation other 

than seagrasses, benthic communities, 

fish, birds, water quality, and substrate 

characteristics. 

The national decision document 

provides a more thorough discussion of 

how the Corps applies its two 

permitting authorities to commercial 

shellfish mariculture activities (i.e., 

Section 10 of the Rivers and Harbors Act 

of 1899 and Section 404 of the Clean 

Water Act). It discusses the types of 

activities regulated under those 

authorities and their potential 

environmental consequences. In 

addition, the national decision 

document provides a more rigorous 

analysis to support a finding, at a 

national level, that the NWP would 

authorize only those commercial 

shellfish mariculture activities that have 

no more than minimal individual and 

cumulative adverse environmental 

effects. The national decision document 

explains that division engineers retain 

the authority to modify, suspend, or 

revoke NWP 48 on a regional basis (see 

33 CFR 330.5(c)). It further discusses the 

authority of district engineers to modify, 

suspend, or revoke NWP 48 on a caseby-case basis (see 33 CFR 330.5(d)) if 

impacts of an activity proposed for 

authorization using NWP 48 has more 

than a minimal adverse effect on the 

environment. A copy of the national 

decision document for the 2021 NWP 48 

is available in the www.regulations.gov 

docket for this rulemaking action 

(docket number COE–2020–0002). 

Commercial shellfish mariculture 

activities involve the production of 

bivalves such as oysters, mussels, clams, 

and scallops. These activities occur in 

marine and estuarine coastal waters of 

the United States. As discussed above, 

the Corps regulates commercial shellfish 

mariculture activities under two of its 

permitting authorities: Section 10 of the 

Rivers and Harbors Act of 1899 and 

Section 404 of the Clean Water Act. 

Under Section 10 of the Rivers and 

Harbors Act of 1899, the Corps regulates 

structures and work in navigable waters 

of the United States. Under Section 404 

of the Clean Water Act, the Corps 

regulates discharges of dredged or fill 

material into waters of the United 

States. 

Nationwide permit 48 authorizes 

structures or work in navigable waters 

of the United States for commercial 

shellfish mariculture activities when DA 

permits are required by Section 10 the 

Rivers and Harbors Act of 1899. The 

Corps’ regulations for Section 10 of the 

Rivers and Harbors Act of 1899 in 33 

CFR part 322 define the term 

‘‘structure’’ as including, ‘‘without 

limitation, any pier, boat dock, boat 

ramp, wharf, dolphin, weir, boom, 

breakwater, bulkhead, revetment, 

riprap, jetty, artificial island, artificial 

reef, permanent mooring structure, 

power transmission line, permanently 

moored floating vessel, piling, aid to 

navigation, or any other obstacle or 

obstruction.’’ [33 CFR 322.2(b)] 

Commercial shellfish mariculture 

activities usually involve structures 

such as cages, racks, nets, pilings, lines, 

trays, tubes, ropes, and bouchots (i.e., 

piles wrapped in rope for cultivating 

mussels) placed in navigable waters to 

cultivate bivalves. 

Oysters may be cultivated using 

structures such as cages, trays, racks, 

bags, and lines. Oyster mariculture may 

be conducted through on-bottom or offbottom techniques (NRC 2010). Clams 

are generally cultivated through onbottom techniques because the 

commercially produced species are 

infaunal organisms that grow in the 

substrate of waterbodies (NRC 2010). 

Clam mariculture may involve the use 

of structures such as tubes and antipredator netting. Mussels may be 

cultivated by attaching mussel brood 

stock or seed to ropes, which are 

suspended in the water column from a 

floating raft. Mussels may also be grown 

on ropes attached to pilings (bouchots) 

(McKindsey et al. 2011), or in cages, 

trays, or racks. Mussels may also be 

cultivated through on-bottom or offbottom culture methods (NRC 2010). For 

example, mussels may be grown on 

ropes suspended in the water column 

from a raft, or via bottom culture. 

Scallops may be attached to ropes via 

monofilament lines tied through a small 

hole drilled into the shell (Robinson et 

al. 2016), a technique called ‘‘ear 

hanging.’’ 

The installation and use of structures 

such as racks, cages, bags, lines, nets, 

and tubes, in navigable waters for 

commercial bivalve shellfish 

mariculture activities in navigable 

waters requires DA authorization under 

Section 10 of the Rivers and Harbors Act 

of 1899. Department of the Army 

authorization is required under Section 

10 of the Rivers and Harbors Act of 1899 

for all structures and/or work in or 

affecting navigable waters of the United 

States, except for activities identified in 

section 322.4 of the Corps’ section 10 

regulations (see 33 CFR 322.3). The 

exceptions in section 322.4 are limited 

to: (a) Activities that were commenced 

or completed shoreward of established 

federal harbor lines before May 27, 

1970; and (b) wharves and piers 

construct in any waterbody, located 

entirely within one state where the 

waterbody is a navigable water of the 

United States solely on the basis of its 

historical use to transport interstate 

commerce. None of these exceptions 

apply to structures or work for 

commercial shellfish mariculture 

activities. In the Corps’ section 10 

regulations, there is no de minimis 

exception from the requirement to 

obtain DA authorization for structures 

and work in navigable waters of the 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2789 

3https://iaspub.epa.gov/waters10/attains_nation_

cy.control (accessed November 27, 2020). 

United States. Any structure or work 

that alters or obstructs navigable waters 

of the United States requires section 10 

authorization from the Corps. With 

respect to structures used for shellfish 

mariculture activities, those structures 

require section 10 authorization because 

they alter navigable waters of the United 

States even though there might be 

circumstances where they might not 

obstruct navigation. 

Commercial shellfish mariculture 

structures may be floating or suspended 

in navigable waters, placed on the 

bottom of the waterbody, or installed in 

the substrate of the waterbody. The 

placement of mariculture structures in 

the water column or on the bottom of a 

waterbody does not result in a discharge 

of dredged or fill material that is 

regulated under section 404 of the Clean 

Water Act. While the presence of these 

structures in a waterbody may alter 

water movement and cause sediment to 

fall out of suspension onto the bottom 

of the waterbody, that sediment 

deposition is not considered a discharge 

of dredged or fill material because those 

sediments were not discharged from a 

point source. In general, the placement 

of bivalve shellfish mariculture 

structures on the bottom of a navigable 

waterbody, or into the substrate of a 

navigable waterbody does not result in 

discharges of dredged or fill material 

into waters of the United States that are 

regulated under Section 404 of the 

Clean Water Act. 

The Corps’ section 10 regulations 

define the term ‘‘work’’ as including, 

‘‘without limitation, any dredging or 

disposal of dredged material, 

excavation, filling, or other modification 

of a navigable water of the United 

States.’’ [33 CFR 322.2(c)] Under this 

NWP, the section 10 authorization 

applies to discharges of dredged or fill 

material into waters of the United States 

that are also navigable waters under 

Section 10 of the Rivers and Harbors Act 

of 1899. Commercial shellfish 

mariculture activities often involve 

work that requires authorization under 

Section 10 of the Rivers and Harbors 

Act, such as harvesting and bed 

preparation activities. Bed preparation 

activities may include tilling or 

harrowing activities, or the placement of 

shell or gravel to provide substrate 

suitable for the establishment and 

growth of bivalves via bottom culture. 

Commercial shellfish mariculture 

activities that only require authorization 

under Section 10 of the Rivers and 

Harbors Act of 1899 are evaluated under 

the Corps’ public interest review 

process at 33 CFR 320.4. The Clean 

Water Act Section 404(b)(1) Guidelines 

issued by the U.S. EPA do not apply to 

activities authorized by the Corps under 

its section 10 authority because those 

guidelines only apply to activities that 

require authorization under Section 404 

of the Clean Water Act. The 404(b)(1) 

Guidelines do not apply to section 10 

activities that may directly or indirectly 

impact special aquatic sites such as 

vegetated shallows (i.e., submerged 

aquatic vegetation). 

Section 101(a)(2) of the Clean Water 

Act states that ‘‘it is the national goal 

that wherever attainable, an interim goal 

of water quality which provides for the 

protection and propagation of fish, 

shellfish, and wildlife and provides for 

recreation in and on the water be 

achieved by July 1, 1983.’’ [33 U.S.C. 

1251(a)(2)] In other words, one of the 

goals of the Clean Water Act is to 

promote water quality that supports the 

propagation of fish and shellfish, in 

addition to other uses of waters of the 

United States. 

The Clean Water Act regulates 

discharges of pollutants into waters of 

the United States. See 33 U.S.C. 1311(a). 

Section 502(6) of the Clean Water Act 

defines the term ‘‘pollutant’’ as meaning 

‘‘dredged spoil, solid waste, incinerator 

residue, sewage, garbage, sewage sludge, 

munitions, chemical wastes, biological 

materials, radioactive materials, heat, 

wrecked or discarded equipment, rock, 

sand, cellar dirt and industrial, 

municipal, and agricultural waste 

discharged into water.’’ Section 502(12) 

of the Clean Water Act defines the terms 

‘‘discharge of a pollutant’’ and 

‘‘discharge of pollutants’’ as meaning: 

Any addition of any pollutant to 

navigable waters from any point source, 

or any addition of any pollutant to the 

waters of the contiguous zone or the 

ocean from any point source other than 

a vessel or other floating craft. 

Point source discharges of pollutants 

are regulated under Sections 402 and 

404 of the Clean Water Act. Under 

Section 402 of the Clean Water Act, the 

U.S. EPA authorized state agencies to 

regulate a variety of pollutants that may 

be discharged into waters of the United 

States via a point source. Under Section 

404 of the Clean Water Act, the Corps 

regulates discharges of dredged or fill 

material into waters of the United 

States. Discharges of dredged or fill 

material into waters of the United States 

that require section 404 permits must 

comply with the Clean Water Act 

section 404(b)(1) Guidelines issued by 

the U.S. EPA at 40 CFR part 230. 

The term ‘‘pollutant’’ does not 

include the placement of shellfish seed 

or bivalves at various stages of growth 

into jurisdictional waters, or the waste 

products (e.g., feces or pseudofeces, 

ammonium) excreted by bivalves. In 

Association to Protect Hammersley, Eld, 

and Totten Inlets v. Taylor Res., Inc., 

299 F.3d 1007 (9th Cir. 2002), the court 

concluded that Congress did not intend 

that living bivalves and the natural 

chemicals and particulate biological 

matter they release through normal 

physiological processes, or the shells 

that might be separated from living 

bivalves from time to time, be 

considered pollutants under the Clean 

Water Act. In other words, bivalve 

shells and natural waste products 

excreted by living bivalves are not 

‘‘biological materials’’ under the Clean 

Water Act’s definition of ‘‘pollutant’’ 

because shells and natural waste 

products come from the natural growth 

and development of bivalves and not 

from a transformative human process. 

The EPA’s National Summary of State 

Information, water quality assessment 

and total maximum daily load (TMDL) 

information,3 provides information on 

the causes of impairment and probable 

sources of impairment for the Nation’s 

waters, including bays, estuaries, coastal 

shorelines, ocean waters, and near 

coastal waters where commercial 

shellfish mariculture activities may 

occur. Twenty-eight causes of 

impairment were identified for bays and 

estuaries. The top 10 causes of 

impairment for bays and estuaries are: 

Polychlorinated biphenyls, nutrients, 

mercury, turbidity, dioxins, toxic 

organics, metals (other than mercury), 

pesticides, pathogens, and organic 

enrichment/oxygen depletion. For bays 

and estuaries, the top 10 sources of 

impairment for bay and estuaries are: 

Legacy/historic pollutants, urbanrelated runoff/stormwater, unknown 

sources, atmospheric deposition, 

municipal discharges/sewage, 

unspecific non-point sources, other 

sources, natural/wildlife, agriculture, 

and industrial. 

Coastal shorelines were impaired by 

16 identified causes, the top 10 of which 

are: Mercury, pathogens, turbidity, 

organic enrichment/oxygen depletion, 

pH/acidity/caustic conditions, 

nutrients, oil and grease, temperature, 

cause unknown—impaired biota, and 

algal growth. The top 10 sources of 

impairment of coastal shorelines are 

municipal discharges/sewage, urbanrelated runoff/stormwater, ‘‘unknown,’’ 

recreational boating and marinas, 

hydromodification, industrial, 

unspecified non-point source, 

agriculture, legacy/historic pollutants, 

and land application/waste sites/tanks. 

Ocean and near coastal waters were 

impaired by 17 identified causes, the 

2790 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

top 10 of which are: Mercury, organic 

enrichment/oxygen depletion, 

pathogens, metals (other than mercury), 

pesticides, turbidity, nuisance exotic 

species, total toxics, pH/acidity/caustic 

conditions, and polychlorinated 

biphenyls. The top 10 sources of 

impairment of ocean and near coastal 

waters are: Atmospheric deposition, 

unknown sources, unspecified nonpoint sources, other sources, recreation 

and tourism (non-boating), recreational 

boating and marinas, urban-related 

runoff/stormwater, hydromodification, 

municipal discharges/sewage, and 

construction. 

None of the top 10 sources of 

impairment of these categories of waters 

are directly related to commercial 

shellfish mariculture activities. 

Commercial shellfish mariculture 

activities require clean water to produce 

bivalve shellfish for human 

consumption. Further, the ability of 

bivalves to improve water quality is 

well understood and their presence in 

an aquatic ecosystem is considered to be 

beneficial (e.g., NRC 2010). 

Mariculture activities can be 

classified as extensive or intensive. For 

extensive mariculture, young organisms 

are allowed to grow naturally using 

resources (food, inorganic nutrients) 

available in marine and estuarine waters 

until they are harvested (Diana et al. 

2009). In intensive mariculture, the 

young organisms are provided feed to 

promote their growth before they are 

harvested. Bivalve shellfish mariculture 

and seaweed mariculture are examples 

of extensive mariculture, and for such 

activities there is no addition of 

materials (e.g., nutrients) through a 

point source that might trigger a permit 

requirement. However, in some cases a 

pesticide might be applied in waters 

where bivalve shellfish mariculture 

occurs (NRC 2010, Simenstad and Fresh 

1995). The application of pesticides is 

not regulated by the Corps under 

Section 404 of the Clean Water Act, but 

it may be regulated by EPA or approved 

states under Section 402 of the Clean 

Water Act. As discussed in the previous 

paragraph, the bivalves themselves that 

are seeded in the waterbody, or are 

added to the waterbody after a limited 

grow out period in a nursery facility 

located on-shore or elsewhere, does not 

trigger a permit requirement the Clean 

Water Act because those living 

organisms are not considered to be 

pollutants under the Act. 

Nationwide permit 48 also authorizes 

discharges of dredged or fill material 

into waters of the United States. The 

Corps’ regulations define ‘‘dredged 

material’’ as ‘‘material that is excavated 

or dredged from waters of the United 

States.’’ [33 CFR 323.2(c)] The term 

‘‘discharge of dredged material’’ is 

defined at 33 CFR 323.2(d)(1) as 

meaning ‘‘any addition of dredged 

material into, including redeposit of 

dredged material other than incidental 

fallback within, the waters of the United 

States.’’ The term ‘‘discharge of dredged 

material’’ includes, but is not limited to: 

(1) The addition of dredged material to 

a specified discharge site located in 

waters of the United States; (2) the 

runoff or overflow from a contained 

land or water disposal area; and (3) any 

addition, including redeposit other than 

incidental fallback, of dredged material, 

including excavated material, into 

waters of the United States which is 

incidental to any activity, including 

mechanized landclearing, ditching, 

channelization, or other excavation. [33 

CFR 323.2(d)(1)] Some activities 

associated with commercial shellfish 

mariculture may result in a discharge of 

dredged material under the third 

instance identified above (i.e., redeposit 

of dredged material other than 

incidental fallback). 

Some commercial shellfish 

mariculture activities involve 

mechanical or hydraulic harvesting 

techniques that may or may not result 

in discharges of dredged material that 

require authorization under Section 404 

of the Clean Water Act. If the bivalve 

harvesting activity would result in only 

incidental fallback of dredged material 

into the waterbody, a section 404 permit 

would not be required. (However, a 

section 10 permit would be required as 

‘‘work’’ in navigable waters). A section 

404 permit would be required for a 

mechanical or hydraulic harvesting 

activity if that activity results in a 

regulated discharge of dredged material 

by having more than incidental fallback. 

Some harvesting activities associated 

with commercial shellfish mariculture 

operations may result in the redeposit of 

dredged material other than incidental 

fallback within the waters of the United 

States. For example, dredge harvesting 

activities may remove sediment along 

with the bivalves. If the removed 

sediment is deposited back into the 

waterbody in a different location, and is 

more than incidental fallback, then the 

harvesting activity may be determined 

by the district engineer to result in a 

discharge of dredged material that 

requires section 404 authorization. On 

the other hand, if the sediment removed 

while harvesting the bivalves is 

redeposited in the same location, then it 

may be considered to be incidental 

fallback, and not require section 404 

authorization. 

The Corps’ regulations at 33 CFR 

323.2(e)(1) define ‘‘fill material’’ as 

meaning ‘‘material placed in waters of 

the United States where the material has 

the effect of: (1) Replacing any portion 

of a water of the United States with dry 

land; or (2) changing the bottom 

elevation of any portion of a water of the 

United States. Examples of fill material 

include: ‘‘rock, sand, soil, clay, plastics, 

construction debris, wood chips, 

overburden from mining or other 

excavation activities, and materials used 

to create any structure or infrastructure 

in the waters of the United States.’’ [33 

CFR 323.2(e)(2)] ‘‘Fill material’’ does not 

include trash or garbage (see 33 CFR 

323.2(e)(3)). Discharges of trash or 

garbage may be regulated under other 

federal, state, or local laws and 

regulations. Fill material does not 

include the placement or release of 

living organisms, such as bivalve larvae 

and juvenile bivalves, into waters of the 

United States. 

The term ‘‘shellfish seeding’’ is 

defined in Section E of the NWPs as the 

‘‘placement of shellfish seed and/or 

suitable substrate to increase shellfish 

production. Bivalve shellfish seed 

consists of immature individual 

shellfish or individual shellfish attached 

to shells or shell fragments (i.e., spat on 

shell). Suitable substrate may consist of 

shellfish shells, shell fragments, or other 

appropriate materials placed into waters 

for shellfish habitat.’’ This definition 

was adopted in the NWPs in 2007 (see 

72 FR 11197). Other materials may be 

used for bivalve shellfish seeding such 

as nets, bags, and ropes. Shellfish seed 

can be produced in a hatchery. Shellfish 

seed can also be produced in 

waterbodies where bivalve larvae can 

attach to appropriate materials, such as 

shell pieces, bags, or ropes. 

Placing shellfish seed on the bottom 

of a waterbody is not a ‘‘discharge of fill 

material’’ and thus does not require a 

section 404 permit. Placing gravel or 

shell on the bottom of a waterbody to 

provide suitable substrate for bivalve 

larvae to attach to is considered to be a 

‘‘discharge of fill material’’ and would 

require section 404 authorization. The 

shellfish themselves, either growing on 

the bottom of a waterbody or in nets, 

bags, or on ropes, are not considered to 

be ‘‘fill material’’ and do not require a 

section 404 permit to be emplaced, 

remain in place, or to be removed from 

a waterbody. 

On-bottom bivalve shellfish 

mariculture activities may involve 

placing fill material such as shell or 

gravel to provide suitable substrate for 

bivalve larvae to attach to and grow on 

the bottom of the waterbody. These fill 

activities may require section 404 

authorization. The placement of 

structures that are used for commercial 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2791 

shellfish mariculture activities, such as 

cages, bags, racks, tubes, and netting, 

does not result in discharges of dredged 

or fill material into waters of the United 

States and therefore do not require 

authorization under Section 404 of the 

Clean Water Act. As discussed above, 

the placement of cages, bags, racks, 

tubes, lines, and netting and other 

structures in navigable waters of the 

United States for the purposes of 

commercial shellfish mariculture 

activities is regulated under Section 10 

of the Rivers and Harbors Act of 1899 

because they can be potential 

obstructions to navigation. 

In the 2020 Proposal, the Corps 

proposed to remove the 1⁄2-acre limit for 

new commercial shellfish mariculture 

activities that directly affect submerged 

aquatic vegetation. The Corps also 

proposed to remove the definition of 

‘‘new commercial shellfish mariculture 

activities.’’ 

Many commenters said that the 1⁄2- 

acre limit for direct impacts to 

submerged aquatic vegetation for new 

commercial shellfish mariculture 

activities should be retained because 

removal of the 1⁄2-acre could cause 

significant and permanent losses of 

submerged aquatic vegetation. One 

commenter said that allowing new 

commercial shellfish mariculture 

activities to directly affect more than 1⁄2- 

acre of submerged aquatic vegetation 

would result in more than minimal 

adverse environmental effects. A couple 

of commenters stated that the removal 

of the 1⁄2-acre limit for impacts to 

submerged aquatic vegetation conflicts 

with submerged aquatic vegetation goals 

and restoration efforts in different states. 

These commenters said that many 

federal, state, and local agencies are 

working throughout the country to 

recover lost submerged aquatic 

vegetation habitat in support of water 

quality and ecosystem goals. Removal of 

the 1⁄2-acre limit would undermine the 

investments and progress made to date 

to recover these important habitats. 

The Corps is removing the 1⁄2-acre 

limit for new commercial shellfish 

mariculture activities that directly affect 

submerged aquatic vegetation in the 

project area. In place of the 1⁄2-acre 

limit, the Corps is substituting a PCN 

requirement for new and existing 

commercial shellfish mariculture 

activities that directly affect more than 

1⁄2-acre of submerged aquatic vegetation. 

This new PCN requirement 

accompanies the removal of the 

definition of ‘‘new commercial shellfish 

aquaculture operation’’ and will provide 

activity-specific review of all 

commercial shellfish mariculture 

activities that directly affect more than 

1⁄2-acre of submerged aquatic vegetation. 

In response to a PCN, the district 

engineer can add conditions to the NWP 

authorization to require mitigation, such 

as best management practices or other 

mitigation measures, to ensure that the 

individual and cumulative adverse 

environmental effects are no more than 

minimal. 

Under the 2017 NWP 48, the 1⁄2-acre 

limit only applied to new commercial 

shellfish mariculture activities. After a 

new commercial shellfish mariculture 

activities was authorized by the Corps, 

the 1⁄2-acre limit no longer applied to 

the existing commercial shellfish 

mariculture activity. In this regard, it 

was less protective than the NWP 48 in 

this final rule, which would apply a 

PCN requirement to existing operations 

seeking reauthorization. The removal of 

the 1⁄2-acre limit in this final rule does 

not affect the authority of other federal 

agencies or tribal, state, or local 

governments to adopt and implement 

protection programs for submerged 

aquatic vegetation under their 

authorities. 

Submerged aquatic vegetation does 

not have any special status under the 

Corps’ regulations for implementing 

Section 10 of the Rivers and Harbors Act 

of 1899, which is the statute that applies 

to most commercial shellfish 

mariculture activities. Submerged 

aquatic vegetation is covered by a 

number of the Corps’ public interest 

review factors such as conservation, 

general environmental conditions, fish 

and wildlife values, and wetlands. 

While vegetated shallows are special 

aquatic sites under the Clean Water Act 

Section 404(b)(1) Guidelines, the 

Guidelines do not prohibit discharges of 

dredged or fill material into vegetated 

shallows. A smaller proportion of 

commercial shellfish mariculture 

activities trigger the permit 

requirements of Section 404 of the Clean 

Water Act because many commercial 

shellfish mariculture activities do not 

involve discharges of dredged or fill 

material into waters of the United 

States. Impacts to submerged aquatic 

vegetation caused by commercial 

shellfish mariculture activities may also 

be addressed through Endangered 

Species Act Section 7 consultations for 

proposed NWP 48 activities that district 

engineers determine ‘‘may affect’’ listed 

species or designated critical habitat, 

including critical habitat for which 

submerged aquatic vegetation is a 

physical or biological feature. Impacts to 

submerged aquatic vegetation may also 

be addressed through the essential fish 

habitat consultation process when the 

district engineer determines a proposed 

NWP 48 activity may adversely affect 

essential fish habitat, which may 

include submerged aquatic vegetation 

beds. 

Several commenters recommended 

that the Corps propose a revised 

threshold for seagrass impacts based on 

biological reference points. These 

commenters said that this is particularly 

important in regions where additional 

provisions to protect seagrasses are not 

in place and state laws do not impose 

additional restrictions on eelgrass. One 

commenter stated that the Corps seeks 

to remove an impact limitation that 

would otherwise incentivize responsible 

siting of mariculture operations and 

minimization of impacts to submerged 

aquatic vegetation. 

The Corps declines to impose an 

additional threshold for seagrass 

impacts based on biological reference 

points because it would be impractical 

to establish such biological reference 

points at a national level for activities 

requiring authorization under section 10 

of the Rivers and Harbors Act of 1899 

and section 404 of the Clean Water Act. 

The threshold to require a PCN for new 

and existing commercial mariculture 

operations that impact more than 1⁄2- 

acre of submerged aquatic vegetation is 

sufficient for the purposes of ensuring 

that a project will have no more than a 

minimal individual or cumulative 

adverse environmental impact. If a state 

decides not to take measures to regulate 

activities in submerged aquatic 

vegetation within its own waters, it does 

not create a legal or regulatory 

requirement for the Corps to address 

such situations. The requirements of 

NWP 48 will continue to provide 

incentives for commercial shellfish 

mariculture operators to plan and 

design their activities to qualify for 

NWP authorization. As discussed above 

there are other applicable laws that can 

address impacts to submerged aquatic 

vegetation in conjunction with the 

Corps’ NWP authorization. In addition, 

where necessary based on the 

characteristics of the regional 

ecosystem, division engineers can add 

regional conditions to NWP 48 to help 

ensure that activities authorized by this 

NWP result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

Several commenters supported 

removing the 2017 definition of ‘‘new 

operation’’ as it is not relevant to a 

specific date or timeline. One 

commenter stated that the Corps has not 

been able to justify why one set of rules 

should apply to existing commercial 

shellfish mariculture operators and 

another set of rules should apply to 

everyone else, including new 

commercial shellfish mariculture 

2792 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

operators. This commenter said that if 

there is a conservation justification for 

protecting eelgrass and other submerged 

aquatic vegetation, then limitations on 

impacts to submerged aquatic vegetation 

should apply to everyone. One 

commenter said that removal of this 

definition failed to identify what it 

would be replaced with and stated that 

there needs a definition for new 

commercial shellfish mariculture 

activities but it must not conflict with 

tribal treaty reserved rights to take 

shellfish. 

The Corps has removed the definition 

of ‘‘new commercial shellfish 

aquaculture operation’’ from this NWP. 

The new 1⁄2-acre PCN threshold will 

apply to both new and existing 

commercial shellfish mariculture 

activities. All activities authorized by 

NWP 48 must comply with general 

condition 17, tribal rights. 

One commenter said that the 

removing the distinction for new 

operations, with the 1⁄2-acre limit, will 

result in more impacts. This commenter 

asserted that the Corps does little to 

justify the proposed removal of the 1⁄2- 

acre limit, given that it added this limit 

three years ago to ensure impacts from 

NWP 48 would be no more than 

minimal. One commenter recommended 

adding the following definition for an 

ongoing or existing activity: Existing 

commercial shellfish aquaculture 

should be defined as the area under 

cultivation when NWP 48 was first 

issued in 2007 or where an operator can 

document that an area is part of a 

regular rotation of cultivation. 

The 1⁄2-acre limit for new commercial 

shellfish mariculture activities was 

added to NWP 48 in 2012 (see 77 FR 

10280). The 1⁄2-acre limit only applied 

to new commercial shellfish activities, 

and does not apply when those on-going 

activities are authorized when NWP 48 

is reissued after the current NWP 

expires. There is no need to add a 

definition of on-going commercial 

shellfish mariculture activities, because 

both new and existing activities are 

treated the same under this reissued 

NWP. 

One commenter stated that the Corps 

should identify a clear spatial 

delineation of what constitutes a 

waterbody to aid in decision-making 

and allow the public to determine the 

scope of this action. One commenter 

noted that the provision for ‘‘project 

area’’ could be subject to two differing 

interpretations. First, it could refer to 

that area where some entity or 

agreement specifically authorizes the 

operator to conduct commercial 

shellfish aquaculture. Second, it could 

be read as being that area where a 

legally binding agreement establishes an 

enforceable property interest for the 

operator. This commenter 

recommended revising the term ‘‘project 

area’’ to read as follows: ‘‘The project 

area is an area in which the operator 

conducts commercial shellfish 

aquaculture activities, as authorized by 

a lease or permit or other legally binding 

agreement.’’ 

The geographic scope for an NWP 48 

activity is the project area, and the term 

project area is defined in the text of the 

NWP. The Corps did not change the 

definition of project area, and it covers 

both situations identified by the 

commenter. It is not necessary to and 

the Corps declines to define, at a 

national level, what constitutes a 

waterbody for the purposes of NWP 48. 

District engineers can identify the 

geographic extent of waterbodies for the 

purposes of NWP 48 activities. 

In the 2020 Proposal, the Corps 

proposed to remove the preconstruction notification thresholds for 

this NWP because most of the direct and 

indirect impacts caused by the activities 

authorized by this NWP under its 

permitting authorities (i.e., Section 10 of 

the Rivers and Harbors Act of 1899 and, 

when applicable, Section of the Clean 

Water Act) are temporary impacts. As 

discussed in the proposed rule, NWP 48 

activities may require PCNs because of 

the requirements of paragraph (c) of 

NWP general condition 18, endangered 

species. Under paragraph (c) of general 

condition 18, pre-construction 

notification is required for non-federal 

permittees when any listed species or 

designated critical habitat might be 

affected by the proposed NWP activity 

or is in the vicinity of the proposed 

NWP activity, or if the proposed NWP 

activity is located in designated critical 

habitat. In some areas of the country, 

commercial shellfish mariculture 

activities are located in waters inhabited 

by listed species and designated critical 

habitat. Division engineers may also add 

regional conditions to this NWP to 

require PCNs for some or all proposed 

NWP 48 activities. 

Several commenters expressed 

concern of the removal of the PCN 

thresholds for new or existing shellfish 

mariculture activities. These 

commenters said the removal of the 

PCN thresholds will result in fewer 

chances to account for regional 

differences in submerged aquatic 

vegetation communities and it will 

make tracking of individual and 

cumulative environmental impacts more 

difficult. One commenter said that the 

Corps should require PCNs for all 

shellfish cultivation operations across 

the country and evaluate sediment 

enrichment at individual cultivation 

sites. 

After evaluating the comments 

received in response to the proposed 

changes to the notification requirements 

of this NWP, the Corps determined that 

pre-construction notification should be 

required for proposed activities that 

directly affect more than 1⁄2-acre of 

submerged aquatic vegetation. The 

Corps has added a new PCN 

requirement to NWP 48 to require preconstruction notification for all NWP 48 

activities that directly affect more than 

1⁄2-acre of submerged aquatic vegetation. 

The new PCN threshold will provide 

district engineers the opportunity to 

review all new and existing commercial 

shellfish mariculture activities that 

directly affect more than 1⁄2-acre of 

submerged aquatic vegetation. The 

Corps does not agree that PCNs should 

be required for all shellfish mariculture 

activities because of potential impacts 

caused by temporary suspension of 

sediment during harvesting activities or 

discharges of dredged material that may 

occur during dredge harvesting 

activities utilizing hydraulic dredging 

equipment. The impacts caused by the 

suspended sediment or discharged 

sediment are temporary because the 

sediment will settle to the bottom of the 

waterbody after a period of time. That 

period of time may depend on local 

currents and other factors but is 

generally understood to be relatively 

short (Newell et al. 1998) and not 

ecologically relevant, especially in 

shallow waters where wave actions 

frequently cause sediment to be 

suspended in the water column. 

Direct effects of commercial shellfish 

mariculture activities on submerged 

aquatic vegetation include the 

placement of structures such as racks, 

bags, and cages on the bottom of a 

waterbody inhabited by submerged 

aquatic vegetation. Direct effects of 

commercial shellfish mariculture 

activities also include harvesting 

activities, including mechanical and 

hydraulic dredging and harvesting by 

hand. Shading of submerged aquatic 

vegetation by off-bottom bivalve 

mariculture structures, such as floating 

racks, bags, and cages, is an indirect 

effect that would not trigger this PCN 

requirement. Changes in water flows 

caused by the use of long lines for 

bivalve mariculture cultivation, where 

slowed water flows cause sediment to 

fall out of suspension and accumulate 

on the bottom of the waterbody is 

another example of a potential indirect 

effect that would not trigger this PCN 

requirement. These direct and indirect 

effects would be caused by structures or 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2793 

work regulated under Section 10 of the 

Rivers and Harbors Act of 1899. 

Direct effects also include discharges 

of dredged or fill material on the bottom 

of a waterbody inhabited by submerged 

aquatic vegetation for on-bottom culture 

methods, such as the placement of shell 

or gravel to provide substrate for the 

bivalves to attach to and grow. 

Discharges of dredged or fill material 

into waters of the United States may 

smother submerged aquatic vegetation, 

which is a direct effect of those 

activities. During harvesting activities 

that include regulated discharges of 

dredged or fill material, there are likely 

to be direct effects to submerged aquatic 

vegetation if those activities occur in 

seagrass beds. These direct effects 

would trigger the PCN requirement if 

they directly affect more than 1⁄2-acre of 

submerged aquatic vegetation An 

example of an indirect effect that might 

be caused by a discharge of dredged or 

fill material into waters of the United 

States for commercial shellfish 

mariculture activities might be a 

turbidity plume that reaches areas 

beyond the discharge site, as suspended 

sediment is transported by water 

currents away from that discharge site. 

This indirect effect would not trigger the 

PCN requirement. 

This pre-construction notification 

requirement will provide district 

engineers the opportunity to evaluate 

each proposed activity that will directly 

affect more than 1⁄2-acre of submerged 

aquatic vegetation and determine 

whether that activity qualifies for NWP 

48 authorization. In response to a preconstruction notification, the district 

engineer may require mitigation (e.g., 

on-site avoidance and minimization) to 

ensure that the authorized activity 

complies with the no more than 

minimal adverse environmental effects 

requirement for the NWPs (see 

paragraph (a) of NWP general condition 

23, mitigation). 

The Corps has removed the additional 

information requirements for PCNs from 

the text of NWP 48 because the 

information requirements of NWP 

general condition 32 cover the 

information needed for this new PCN 

requirement. The information 

requirements for NWP PCNs are listed 

in paragraph (b) of NWP general 

condition 32, pre-construction 

notification. Paragraph (b)(5) of NWP 

general condition 32 requires the PCN to 

include a delineation of wetlands, other 

special aquatic sites (including 

vegetated shallows, or submerged 

aquatic vegetation), and other waters. 

One commenter supported the 

removal of the PCN requirements 

because in many instances bivalve 

populations have been overharvested or 

in some cases attacked by diseases or 

poor water quality. This commenter said 

that regulation of these activities should 

not impede the ability to reinvigorate 

these species and growing them for food 

production. One commenter supported 

of removal of the PCN threshold for 

commercial shellfish mariculture for 

activities that include a species that has 

never been cultivated in the waterbody 

as long as the NWP continues to 

prohibit the cultivation of a 

nonindigenous species unless that 

species has been previously cultivated 

in the waterbody, and prohibit the 

cultivation of an aquatic nuisance 

species as defined in the Nonindigenous 

Aquatic Nuisance Prevention and 

Control Act of 1990. One commenter 

said that state natural resource agencies 

should be notified for NWP 48 activities 

that seek to stock a species that has 

never been cultivated in a waterbody, 

and applicable state permits be obtained 

before the NWP 48 authorization 

becomes effective for a particular 

commercial shellfish mariculture 

activity. 

The addition of the PCN requirement 

for commercial shellfish mariculture 

activities that directly affect more than 

1⁄2-acre of submerged aquatic vegetation 

should not pose impediments on food 

production or efforts to reinvigorate 

these species in waters whether they 

have been overharvested. The Corps has 

also removed the PCN threshold for 

indigenous species that have never been 

cultivated in the waterbody. While the 

Corps has removed the PCN threshold, 

it has modified the NWP to prohibit the 

cultivation of a nonindigenous species 

unless that species has been previously 

cultivated in the waterbody. State 

natural resources agencies can reach out 

to Corps districts to request 

coordination on proposals to cultivate 

indigenous species that have never been 

cultivated in the waterbody. 

Several commenters stated the PCN 

requirements should not be removed 

because tribes require notice and 

collaboration with the Corps in order to 

protect their treaty fishing rights. These 

commenters said that even temporary 

impacts to eelgrass could result in 

consequences to tribe’s treaty-reserved 

fish populations and the habitat they 

rely on. In addition, these commenters 

stated that removal of the PCN 

thresholds poses significant problems to 

assuring protection of salmon, nearshore 

habitat, and treaty shellfish gathering 

rights. One commenter recommended 

adding a PCN requirement for all 

activities within the U.S. v. Washington 

(Boldt) case area. 

During the process for issuing and 

reissuing these NWPs, Corps districts 

have been consulting and coordinating 

with tribes. Corps districts and tribes 

can establish coordination procedures to 

help ensure that NWP 48 activities 

comply with general condition 17, tribal 

rights. Division engineers can also add 

regional conditions to this NWP, where 

appropriate based on the characteristics 

of the regional ecosystem, to ensure that 

the activities authorized by this NWP 

cause no more than minimal adverse 

environmental effects to specific 

resources, including tribal trust 

resources. 

One commenter expressed support for 

the proposed reissuance of NWP 48. 

One commenter expressed support for 

the reissuance of NWP 48 because this 

NWP could significantly reduce the 

barriers to entry for emerging 

mariculture industries, and reduce the 

timeframes and costs associated with 

obtaining DA authorization for such 

activities. One commenter said that the 

conditions in the text of NWP 48 and 

NWP A should be consistent and 

preferably combined into one NWP for 

cultivating shellfish and seaweeds. One 

commenter stated that small businesses 

are supportive of the proposed changes 

to NWP 48, but acknowledged that there 

may be unfavorable litigation outcomes 

if the changes are finalized. However, 

these businesses are concerned that 

small businesses nationwide could be 

subject to unfavorable litigation 

outcomes where the environmental 

analysis and justification for this 

rulemaking is not sound. 

Nationwide permit 48 provides a 

streamlined authorization process for 

commercial shellfish mariculture 

activities that result in no more than 

minimal adverse environmental effects, 

and should help reduce regulatory 

burdens for the mariculture industry. 

The text of NWPs 48 and A (now 

designated as NWP 55) has some 

similarities, as well as some differences. 

Some of those differences are due to 

NWP 55 activities potentially occurring 

in a broader range of waters, including 

deeper coastal waters more distance 

from the shoreline and federal waters 

over the outer continental shelf. 

Commercial shellfish mariculture 

activities typically occur in coastal 

waters new the shoreline. The national 

decision document for this NWP has 

been revised to address the 2019 

decision of the United States District 

Court, Western District of Washington at 

Seattle in the Coalition to Protect Puget 

Sound Habitat v. U.S. Army Corps of 

Engineers et al. (Case No. C16–0950RSL) 

and Center for Food Safety v. U.S. Army 

2794 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

Corps of Engineers et al. (Case No. C17– 

1209RSL), 

Several commenters stated that the 

Corps should not reissue NWP 48, and 

if the Corps decides to reissue NWP 48 

it should improve its review of PCNs 

and require documentation of 

compliance with specific design and 

operational standards. A few 

commenters said that the Corps should 

not reissue NWP 48 as proposed for the 

same reasons that NWP was found by 

the United States District Court, 

Western District of Washington at 

Seattle to be in non-compliance with 

National Environmental Policy Act and 

the Clean Water Act. One commenter 

said that regional general permits 

should be issued in Washington State, 

for specific water bodies and for 

particular types of shellfish aquaculture. 

Nationwide permit 48 authorizes a 

variety of commercial shellfish 

mariculture activities under Section 10 

of the Rivers and Harbors Act of 1899 

and Section 404 of the Clean Water Act, 

and a number of different structures can 

be used to cultivate bivalve molluscs. 

Project proponents are responsible for 

designing their projects and for those 

activities that require pre-construction 

notification, district engineers evaluate 

the direct, indirect, and cumulative 

adverse environmental effects caused by 

the proposed NWP activity. In the 

national decision document, the Corps 

has revised its NEPA analysis and its 

Clean Water Act Section 404(b)(1) 

Guidelines analysis. Regional general 

permits can be issued by district 

engineers to authorize these activities. 

Regional general permits can be 

effective in addressing regional 

approaches to commercial shellfish 

mariculture activities and the potential 

adverse environmental effects those 

activities may cause. 

One commenter noted that a lack of 

clarity in the proposed rule may lead to 

permitting delays and uncertainty, both 

of which have negative effects on small 

businesses. A couple commenters said 

that with regards to shellfish 

mariculture there needs to be more 

support from all levels of government to 

consider first and foremost a food 

production activity now and in the 

future to address our seafood deficit and 

food security for our nation. One 

commenter recommended that the 

Corps utilize information in Endangered 

Species Act and essential fish habitat 

consultation documents issued in 

Washington State to support the 

reissuance of NWP and address 

environmental issues of concern under 

the Clean Water Act, the Rivers and 

Harbors Act of 1899, and the National 

Environmental Policy Act. 

The reissued NWP 48 will provide a 

streamlined authorization process for 

commercial shellfish mariculture 

activities that cause no more than 

minimal individual and cumulative 

adverse environmental effects. 

Commercial shellfish mariculture 

activities may also be regulated by 

tribal, state, and local governments. The 

consultation documents issued by the 

U.S. FWS and NMFS in Washington 

State are applicable only to Washington 

State, and this NWP authorizes 

commercial shellfish mariculture 

activities across the country. 

One commenter observed that at the 

national level, Congress passed the 

National Aquaculture Act of 1980 in 

response to findings that the nation has 

potential for significant aquaculture 

growth, but that this growth is inhibited 

by many scientific, economic, legal, and 

production factors. In support of the 

proposed reissuance of NWP 48, one 

commenter cited the National Shellfish 

Initiative’s goal of increasing 

populations of bivalve shellfish in our 

nation’s coastal waters—including 

oysters, clams, and mussels—through 

commercial production and 

conservation activities. One commenter 

stated that the NWP 48 should require 

notification to the U.S. Coast Guard. 

The reissuance of NWP 48 helps 

support the growth of the aquaculture 

industry in the United States by 

reducing regulatory burdens on growers 

and providing a streamlined 

authorization process under Section 10 

of the Rivers and Harbors Act of 1899 

and Section 404 of the Clean Water Act. 

The activities authorized by this NWP 

will also help increase the numbers of 

bivalves in the Nation’s coastal waters, 

and the ecological functions and 

services those bivalve molluscs provide, 

especially in coast waters where bivalve 

shellfish populations have significantly 

declined as a result of overharvesting. 

The project proponent is responsible for 

securing any licenses or permits from 

the U.S. Coast Guard, and complying 

with U.S. Coast Guard requirements that 

may apply to structures used for 

commercial shellfish mariculture 

activities. 

Several commenters supported 

changing the name of NWP 48 from 

‘‘commercial shellfish aquaculture 

activities’’ to ‘‘commercial shellfish 

mariculture activities.’’ One commenter 

suggested adding modifying terms to 

‘‘aquaculture’’ such as ‘‘marine,’’ 

‘‘coastal marine,’’ or ‘‘offshore’’ to 

improve specificity and clarity. One 

commenter suggested clarifying that the 

terms ‘‘mariculture’’ and ‘‘aquaculture’’ 

can be used interchangeably. A couple 

of commenters objected to changing 

‘‘aquaculture’’ to ‘‘mariculture’’ in the 

title and text of NWP 48. They suggested 

using the term ‘‘marine aquaculture’’ to 

more closely align with the terms used 

by industry. One said that using the 

term ‘‘mariculture’’ may result in an 

unintended consequence of confusing or 

invalidating local and regional policy 

and regulations. One commenter stated 

the term ‘‘commercial shellfish 

aquaculture’’ is not defined and 

recommended defining that term in a 

manner that does not conflict with 

tribes’ treaty-secured rights to take 

shellfish. One commenter stated that 

term ‘‘shellfish’’ is not explicitly 

defined, and recommended adding a 

definition to clarify whether that term 

includes lobsters and conches or only 

bivalves. 

The Corps is retaining the use of the 

term ‘‘mariculture’’ in this NWP. Use of 

the term ‘‘mariculture’’ in NWP 48, as 

well as NWPs 55 and 56, will not 

invalidate any local or regional policies 

or regulations. The use of the term 

mariculture is intended to provide 

clarity, to ensure that project 

proponents do not attempt to use NWP 

48 to authorize the production of other 

species considered to be ‘‘shellfish’’ 

(e.g., shrimp, crawfish) in land-based 

facilities and ponds. The term 

‘‘mariculture’’ refers to the cultivation of 

species for food production, and should 

not interfere with a tribe’s taking of 

shellfish from coastal waters. The Corps 

has modified the first paragraph of this 

NWP to clarify that the term ‘‘shellfish’’ 

refers to bivalve molluscs such as 

oysters, clams, mussels, and scallops. 

Several commenters said that the 

Corps’ proposal fails to properly 

consider that the impacts authorized by 

NWP 48 violate the Clean Water Act and 

the Endangered Species Act. These 

commenters stated that the impacts of 

commercial shellfish mariculture 

activities should be evaluated through 

environmental impact statements and 

through formal programmatic ESA 

consultations. One commenter stated 

that the Corps has failed to provide 

adequate documentary support or 

substantive evidence for its conclusions 

that permit terms and conditions would 

be sufficient to ensure that 

environmental effects would be minimal 

and not significant. One commenter 

asserted that the proposed NWP 48 

violates the Section 404(e) of the Clean 

Water Act because it allows unlimited 

impacts. 

Activities authorized by NWP 48 must 

comply with general condition 18, 

endangered species. Some Corps 

districts have developed programmatic 

ESA section 7 consultations that cover 

commercial shellfish mariculture 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2795 

activities. Activities authorized by NWP 

48 do not require additional NEPA 

compliance, since the Corps fulfills the 

requirements of NEPA when it issues its 

national decision document for the 

reissuance of that NWP, because that 

decision document includes and 

environmental assessment with a 

finding of no significant impact. Section 

404(e) of the Clean Water Act does not 

require NWPs to have quantified acreage 

or other limits to ensure that authorized 

activities result in no more than 

minimal individual and cumulative 

adverse effects. Commenters have not 

provided any substantive evidence to 

support their opinions that all activities 

authorized by NWP 48 result in more 

than minimal adverse environmental 

effects and should not be authorized by 

an NWP. The Corps has issued a 

number of NWPs that do not have 

quantitative limits, such as NWP 27 

(Aquatic Habitat Restoration, 

Enhancement, and Establishment 

Activities), NWP 31 (Maintenance of 

Existing Flood Control Facilities), and 

NWP 38 (Cleanup of Hazardous and 

Toxic Waste). 

Several commenters said that NWP 48 

activities contribute to degradation of 

waters of the United States by adversely 

affecting water quality, eelgrass, salmon, 

birds, herring, and flatfish and causing 

adverse effects from the introduction of 

plastics. One commenter recommended 

prohibiting commercial shellfish 

mariculture activities in or near marine 

protected areas or sensitive areas, such 

as essential fish habitat. This 

commenter said that the NWP should 

prohibit the use of plastic equipment or 

inputs such as pesticides, herbicides, or 

pharmaceuticals. This commenter also 

said that NWP 48 activities should 

require extensive documentation of 

compliance with design and operation 

standards, with routine reporting. In 

addition, this commenter stated that 

permitted activities should incorporate 

more rigorous operation, emergency 

response, and pollution standards, with 

swift and severe consequences for noncompliance, including revocation of 

permits. 

The potential environmental effects 

caused by commercial shellfish 

mariculture activities are discussed in 

the national decision document for 

NWP 48. The Corps acknowledges that 

commercial shellfish mariculture 

activities may have negative, positive, 

and neutral effects on various 

environmental components, including 

various species. It is generally 

understood that the presence of bivalves 

in an aquatic ecosystem is beneficial. 

Some commenters point out various 

adverse environmental effects caused by 

commercial shellfish mariculture 

activities, but other acknowledge the 

studies and observations that identify 

beneficial environmental effects caused 

by commercial shellfish mariculture 

activities. If a proposed commercial 

shellfish mariculture activity may 

adversely affect essential fish habitat as 

a result of activity subject to the Corps’ 

legal authority, the district engineer will 

conduct essential fish habitat 

consultation with the NMFS, and 

incorporate as appropriate, essential fish 

habitat conservation recommendations 

into the NWP authorization as permit 

conditions. 

The Corps does not have the legal 

authority to regulate the use of 

pesticides, herbicides, or 

pharmaceuticals that may be associated 

with commercial shellfish mariculture 

activities. General condition 6 requires 

the use of suitable material for activities 

authorized by NWPs. Plastics materials 

may be used for commercial shellfish 

mariculture activities and it is the 

responsibility of the permittee to ensure 

that structures that may be made with 

plastics (e.g., tubes for geoducks, antipredator netting) are properly 

maintained (see general condition 14). 

The Corps has no authority to regulate 

plastics that may wash away from a 

commercial shellfish mariculture 

activity. The Corps does not regulate the 

placement of trash or garbage into 

waters of the United States (see 33 CFR 

323.2(e)(3)). Section 13 of the Rivers and 

Harbors Act of 1899 (i.e., the Refuse Act) 

has been superseded by Section 402 of 

the Clean Water Act (see 33 CFR 

320.2(d)). 

One commenter requested that the 

Corps change NWP 48 to remove any 

unintended competitive edge for wild 

harvest fisheries, both in terms of 

allowable gear and harvesting 

requirements. One commenter stated 

that they investigated direct and 

indirect effects of individual bottom 

cages on eelgrass, and found that at the 

current level of mariculture activity, 

short-term cultivation of oysters has a 

minimal effect on eelgrass growth, water 

quality, and sediment characteristics. 

However, if the cultivation activity 

expands in terms of gear and/or 

individual operations, it may result in 

measurable effects. 

The Corps lacks the authority to 

prevent competition between 

commercial shellfish mariculture 

operators and fishers that harvest wild 

populations of bivalves. The Corps 

appreciates the information regarding 

the direct and indirect effects of bottom 

cages for oyster mariculture on eelgrass. 

The Corps is finalizing a new PCN 

threshold for commercial shellfish 

mariculture activities directly affecting 

more than 1⁄2-acre of submerged aquatic 

vegetation to ensure the effects noted by 

the commenter are evaluated by district 

engineers. 

One commenter said that commercial 

shellfish mariculture activities have 

minimal adverse impacts, and they can 

have beneficial effects on habitat and 

water quality, and there is an extensive 

scientific literature that supports the 

identification of these benefits. This 

commenter discussed the structured 

habitat provided by commercial 

shellfish mariculture activities that is 

used by numerous species for refuge, 

foraging, and predator avoidance, 

thereby increasing species richness, 

abundance, and biodiversity. This 

commenter also said that bivalves ingest 

and filter suspended materials in the 

water column, sequestering excess 

nutrients as protein in their tissue. This 

commenter also remarked that upon 

harvesting these bivalve molluscs, 

nutrients are removed from the marine 

ecosystem, which improves water 

quality. This commenter also noted that 

commercial shellfish mariculture 

activities can also help to transfer the 

load of suspended materials from the 

water column to the benthos through a 

phenomenon known as benthic-pelagic 

coupling. In addition, this commenter 

said that by providing structured 

habitat, improving water quality, and 

helping to transfer the load of 

suspended materials from the water 

column to the benthos, shellfish can 

help mitigate adverse impacts caused by 

several different types of human 

activities and developments. This 

commenter stated that for these reasons, 

shellfish are increasingly being utilized 

in environmental restoration projects 

across the United States. The Corps 

acknowledges these comments on the 

beneficial effects of commercial 

shellfish mariculture activities on 

coastal waters. These beneficial effects 

have informed the Corps’ decision to 

reissue NWP 48 as discussed because it 

will have no more than a minimal 

individual or cumulative adverse 

environmental effects. 

One commenter said that impacts 

from geoduck farms are insignificant (no 

more than minimal) for: Forage fish 

spawning areas; consumption of forage 

fish larvae; juvenile salmon; waves, 

currents, and sediment transport; 

microplastics; marine debris; impact to 

the benthic community; cumulative 

impacts; recreation and navigation; 

marine mammals; birds; farm 

preparation; predator protection netting; 

harvest activities; density, genetics, 

diseases, and parasites; and property 

values. This commenter remarked that 

2796 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

the disturbances caused by commercial 

shellfish mariculture activities are 

within the range of natural variation 

experienced by benthic communities in 

Puget Sound. This commenter also 

stated that differences in the structure of 

mobile macrofauna communities 

between planted areas with geoduck 

tubes and nets and nearby reference 

beaches do not persist after the geoduck 

tubes and nets removed during the 

grow-out culture phase. In addition, this 

commenter said that nutrients released 

from a typical commercial geoduck 

operation are low and localized effects 

are likely to be negligible. Finally, this 

commenter stated that geoduck 

aquaculture practices do not make 

culture sites unsuitable for later 

colonization by eelgrass. The Corps 

acknowledges these comments on the 

beneficial effects of geoduck mariculture 

activities on coastal waters. These 

beneficial effects have informed the 

Corps’ decision to reissue NWP 48 as 

discussed because it will have no more 

than a minimal individual or 

cumulative adverse environmental 

effects. 

One commenter said that commercial 

shellfish mariculture activities have 

minimal impacts on birds, including 

foraging, noise, and the potential for net 

entanglement. This commenter noted 

that birds forage within mariculture 

operations, and feed on organisms 

growing on mariculture equipment, and 

the shellfish being produced. This 

commenter stated that noise associated 

with commercial shellfish mariculture 

activities could result in temporary 

displacement of birds from the 

immediate area, but this is a temporary 

impact to overall bird populations. 

Lastly, this commenter asserted that 

while predator exclusion net 

entanglement is a possibility for birds, 

it is likely to be rare and unlikely to 

result in significant effects to marine 

bird and bald eagle populations 

utilizing these areas. The Corps 

acknowledges these comments on the 

effects of commercial shellfish 

mariculture activities on birds, which 

have informed the Corps’ decision to 

reissue NWP 48 as discussed because it 

will have no more than a minimal 

individual or cumulative adverse 

environmental effects. 

One commenter objected to a 

statement in the proposed rule regarding 

the placement of shell or gravel on the 

bottom of the waterbody for on-bottom 

cultivation of bivalves. The proposed 

rule stated that this is a permanent 

impact. This commenter said that the 

placement of gravel or shell on the 

bottom of the waterbody causes 

temporary changes, which is why 

shellfish farmers frequently need to 

place gravel or shell in the same area 

from time to time. According to this 

commenter, this temporary change has 

beneficial impacts to species presence 

and diversity, according to a 

programmatic biological opinion issued 

by the NMFS for commercial shellfish 

mariculture activities in Washington 

State. This commenter said that 

placement of shell or gravel on the 

bottom of the waterbody shifts the 

benthic community from polychaetes to 

amphipods and copepods, which are 

important prey items for juvenile 

salmon. This commenter requested that 

the Corps correct or clarify this 

statement to recognize that the 

placement of shell or gravel causes 

temporary, localized changes to the 

marine environment, and these changes 

are beneficial. 

If the commercial shellfish 

mariculture operator places shell or 

gravel on the bottom of the waterbody, 

and does not remove the shell or gravel, 

then it is a permanent impact. When an 

NWP authorizes a temporary impact, the 

structure or fill has to be removed after 

that structure or fill is no longer needed. 

For a temporarily filled area, after the 

fill is removed several NWPs require the 

project proponent to restore the affected 

area to pre-construction elevations. The 

Corps acknowledges that a permanent 

fill may have positive, negative, or 

neutral environmental effects. For 

example, the permanent fill may be 

dispersed by flowing water and 

transported in the waterbody so that it 

becomes part of the benthic habitat in 

that waterbody. That permanent fill may 

provide habitat for certain aquatic 

organisms. 

Several commenters said they agreed 

that placing shellfish seed on the bottom 

of a waterbody is not a ‘‘discharge of fill 

material’’ and thus does not require a 

section 404 permit. Regardless of that 

whether the placement of shellfish seed 

is done for commercial aquaculture, 

habitat restoration, or fisheries 

enhancement, it should not require a 

section 404 permit unless there is 

significant placement of materials for 

reefs/hummocks in quantities adequate 

to alter the depth profile and alter the 

bottom topography. Several commenters 

noted that while depositing shell with 

spat already attached is considered seed 

and regulated ‘‘work’’ under Section 10 

of the Rivers and Harbors Act of 1899, 

the proposed NWP 48 is also defining 

this as fill regulated under Section 404 

of the Clean Water Act. They stated that 

requiring section 404 authorization is an 

additional unnecessary burden and 

these activities do not result in adverse 

environmental impacts and in actuality 

have positive impacts to water quality. 

This method is unlike a restoration 

project where oyster shell is deposited 

in large enough quantities to create reefs 

and foster a permanent non-transient 

population. This commenter requested 

that the Corps make a distinction 

between two different activities: 

Sparsely placing shell on the bottom of 

the waterbody to catch larvae and 

hummock building and restoration 

efforts. 

In the 2020 Proposal, the Corps did 

not state that shellfish seeding activities 

require authorization under Section 404 

of the Clean Water Act. In addition, the 

Corps did not state that shellfish 

seeding requires authorization under 

Section 10 of the Rivers and Harbors Act 

of 1899. The placement of shell in a 

waterbody to construct reefs or 

hummocks for bivalves to settle on and 

grow requires Clean Water Act section 

404 authorization because it raises the 

bottom elevation of the waterbody and 

is a discharge of fill material, as that 

term is defined at 33 CFR 323.2(e). That 

activity also requires authorization 

under Section 10 of the Rivers and 

Harbors Act of 1899 as a structure (e.g., 

a reef) under 33 CFR 322.2(b) or work 

under 33 CFR 322.2(c). 

One commenter said that placing 

single shellfish seeds on beds without 

containment structures is not regulated 

under Section 10 of the Rivers and 

Harbors Act of 1899. This commenter 

asserted that this activity is not subject 

to regulation under section 10 because 

it does not involve the use of structures, 

nor does it constitute work that alters or 

modifies the navigable capacity of the 

waters. Juvenile clams bury a few inches 

into the sediment and are essentially 

imperceptible, and single-set oysters lie 

on the bottom of the substrate without 

meaningfully altering the elevation of 

the seabed. This commenter said that 

the placement and grow-out of single set 

clams and oysters therefore does not 

require approval under Section 10 of the 

Rivers and Harbors Act of 1899. This 

commenter noted that section 10 

authorization is required for activities 

that alter the bottom elevation of waters 

in a manner to impact their navigable 

capacity, and that shellfish seeding does 

not alter the bottom elevation. 

In the proposed rule at 85 FR 57334, 

the Corps stated that on-bottom bivalve 

shellfish mariculture activities may 

involve placing fill material such as 

shell or gravel to provide suitable 

substrate for bivalve shellfish larvae to 

attach to and grow on the bottom of the 

waterbody and that these activities may 

require section 404 authorization. The 

proposed rule did not state that 

depositing shell with spat attached to 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2797 

the shell is considered fill material for 

the purposes of NWP 48. Discharging 

shell without bivalve larvae (i.e., spat) 

into a waterbody for the purposes of 

enhancing benthic habitat to attract 

bivalve shellfish larvae may require 

section 404 authorization if it meets the 

Corps’ definition of ‘‘fill material’’ and 

‘‘discharge of fill material’’ at 33 CFR 

323.2(e) and (f). Under 33 CFR 323.2(f), 

the term ‘‘discharge of fill material’’ 

means the addition of fill material into 

waters of the United States. The term 

‘‘discharge of fill material’’ does not 

include plowing, cultivating, seeding 

and harvesting for the production of 

food, fiber, and forest products (33 CFR 

323.2(f)), so shellfish seeding is not 

considered a ‘‘discharge of fill 

material.’’ If the placement of gravel or 

shell on the bottom of the waterbody to 

enhance the substrate of the waterbody 

to attract shellfish larvae is not removed 

upon completion of the shellfish 

cultivation activity, it is considered a 

permanent fill even though it may 

increase the habitat value for bivalves, 

crustaceans, and other aquatic 

organisms. 

A few commenters said that predator 

nets, and low-profile cages to protect 

bottom planted seeds should not be 

considered navigation hazards subject to 

permitting requirements unless they 

create a vertical profile of greater than 

25% of the water depth. One commenter 

agreed with the Corps’ statements in the 

proposed rule that most commercial 

shellfish mariculture activities do not 

involve discharges of dredged or fill 

material that require Clean Water Act 

section 404 authorization. This 

commenter noted that placing living 

bivalve shellfish (e.g., clam seed and 

oyster cultch) in the intertidal zone 

during bottom-culture activities and 

their natural by-products are not 

pollutants, citing the Association to 

Protect Hammersley, Eld, and Totten 

Inlets v. Taylor Res., Inc., 299 F.3d 1007 

(9th Cir. 2002). One commenter stated 

that the proposal accurately states that 

some commercial bivalve shellfish 

mariculture activities are regulated 

under section 10 because they include 

structures such as racks, cages, bags, 

lines, nets, and tubes, when those 

structures are placed in navigable 

waters. This commenter also said that 

dredging, excavation, and filling 

activities would also require section 10 

authorization, although these activities 

are relatively rare. 

The placement of predator nets and 

low-profile cages in navigable waters of 

the United States requires authorization 

under Section 10 of the Rivers and 

Harbors Act because those nets and 

cages are considered structures under 33 

CFR 322.2(b) and may be obstructions to 

navigation. The Corps maintains its 

views that most commercial shellfish 

mariculture activities are regulated 

solely under Section 10 of the Rivers 

and Harbors Act of 1899, and a 

relatively small percentage are also 

regulated under Section 404 of the 

Clean Water Act because they involve 

discharges of dredged or fill material 

into waters of the United States. The 

Corps agrees that the placement of 

living bivalves into waters of the United 

States does not result in a discharge of 

a pollutant that requires authorization 

under Section 404 of the Clean Water 

Act. 

One commenter said that bivalve 

shellfish harvesting activities do not 

bring commercial shellfish farming 

within the regulatory reach of Clean 

Water Act Section 404. In order for there 

to be a discharge regulated under 

Section 404 of the Clean Water Act, 

there must be an addition of a pollutant 

to a water of the United States, and that 

the harvesting commercial shellfish 

does not involve an ‘‘addition’’ for 

purposes of the Clean Water Act section 

404. This commenter also stated that 

harvesting shellfish constitutes a ‘‘net 

withdrawal’’ of material from the water, 

not an ‘‘addition.’’ This commenter 

requested that the Corps clarify in the 

final rule that these commercial 

shellfish farming activities do not 

involve discharges of dredged or fill 

material and hence do not require Clean 

Water Act Section 404 authorization. 

The Corps does not agree that all 

bivalve shellfish harvesting activities do 

not require authorization under Section 

404 of the Clean Water Act. There may 

be circumstances where a bivalve 

shellfish harvesting activity results in a 

regulable discharge that requires section 

404 authorization. Those circumstances 

depend on how the harvesting activity 

is conducted, and whether a particular 

harvesting activity results in an addition 

of dredged material into, including 

redeposit of dredged material other than 

incidental fallback within, the waters of 

the United States. District engineers 

apply the definitions of ‘‘dredged 

material’’ and ‘‘discharge of dredged 

material’’ at 33 CFR 323.2(c) and (d), 

respectively to determine whether a 

discharge requiring section 404 

authorization has occurred. The Corps 

agrees that bivalve shellfish harvesting 

activities do not normally involve 

discharges of fill material, as that term 

is defined at 33 CFR 323.2(f). 

One commenter said that aquaculture 

is not exempt from CWA permitting 

under Section 404(f) of the Clean Water 

Act. This commenter said that adding 

gravel or shell to bags also triggers a 

section 404 permit requirement even if 

the bags themselves do not qualify as fill 

material. Even for activities that do not 

directly result in discharge of dredge or 

fill material, the Corps must document 

secondary effects, and has the authority 

to impose conditions reasonably related 

to the purpose of section 404 permits. 

Another commenter stated that 

established shellfish farms are exempt 

from regulation under the Clean Water 

Act’s farming exemption, and that the 

reissued NWP 48 should state that 

established commercial shellfish 

farming activities do not require CWA 

Section 404 permits. This commenter 

said that even if some shellfish farming 

activities include discharges of dredged 

or fill material, established shellfish 

farms are exempt from regulation under 

section 404(f), which exempts normal 

farming activities from the requirement 

to obtain permits under Section 402 and 

404 of the Act. 

Whether shellfish mariculture 

qualifies for a section 404(f) exemption 

is beyond the scope of this rulemaking. 

The authority for determining whether a 

particular activity, such as commercial 

shellfish mariculture activities, is 

eligible for the Clean Water Act Section 

404(f) exemptions lies with the U.S. 

EPA. See the 1989 Memorandum of 

Agreement Between the Department of 

the Army and the U.S. EPA Concerning 

the Determination of the Section 404 

Program and the Application of the 

Exemptions under Section 404(f) of the 

Clean Water Act. 

One commenter stated that advanced 

authorization of the broad suite of 

commercial shellfish mariculture 

activities afforded by the NWP 48 is 

impracticable because the blanket 

authorization cannot take into account 

important details regarding local 

ecological conditions at the growing site 

and specific information about the 

shellfish cultivation techniques. This 

commenter recommended that initial 

authorization should be made on a caseby-case basis and should be subject to 

ongoing monitoring and periodic 

review. 

Section 404(e) of the Clean Water Act 

does not specify how broadly or 

narrowly the Corps has to identify any 

category of activities for the issuance of 

a general permit, including the NWPs. 

Section 404(e) only requires that the 

activities in that category are similar in 

nature. Likewise, under the Corps’ 

definition of general permit in its 

section 10 regulations at 33 CFR 

322.2(f), there are no standards 

regarding how broad or narrow the 

category has to be. Therefore, the Corps 

has substantial discretion to determine 

the categories of activities to be 

2798 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

authorized by the NWPs. Nationwide 

permits are issued by Corps 

Headquarters to authorize categories of 

activities across the country, and there 

is substantial variation in aquatic 

resources and the functions they 

provide, as well as the degree to which 

they perform those functions. 

Nationwide permits require preconstruction notification for certain 

activities so that district engineers can 

assess proposed activities in the context 

of local ecological conditions and make 

a case-by-case determination as to 

whether proposed activities qualify for 

NWP authorization. 

Some commenters mentioned that the 

scientific literature cited in the 

proposed rule concerned studies of 

eelgrass located in Washington State. 

These commenters stated that despite its 

broad distribution along the Pacific and 

Atlantic coasts, eelgrass is a poor choice 

for a model species to develop a 

national standard from a regional 

dataset. One genus should not dictate 

policy on an entire suite of functionally, 

taxonomically, and geographically 

distinct species. These commenters 

went on to say that while the individual 

and cumulative impacts to eelgrass 

meadows in Washington may be 

temporary, it could be irreversible in 

areas where environmental conditions 

are more impaired and submerged 

aquatic vegetation meadows are 

declining in areas such as New England, 

the mid-Atlantic coast, the East coast of 

Florida, the Gulf of Mexico, and 

California. 

For the 2020 Proposal, the Corps 

considered scientific literature in 

coastal ecosystems located nationwide. 

The Corps also discussed submerged 

aquatic vegetation in general terms, and 

only made specific references to eelgrass 

when a particular study examined 

eelgrass. After the reissuance of NWP 48 

in 2017, the Corps reviewed a broader 

range of scientific literature on the 

interactions between commercial 

bivalve shellfish mariculture activities 

and submerged aquatic vegetation, and 

found that while some permanent 

impacts to submerged aquatic vegetation 

may occur, the impacts are often 

temporary and submerged aquatic 

vegetation co-exists with bivalve 

mariculture activities. The Corps 

examined scientific literature from 

studies that occurred in other areas of 

the United States (e.g., Chesapeake Bay), 

not just Washington State. 

One commenter recommended that 

the Corps require mitigation for impacts 

to submerged aquatic vegetation at a 

ratio of at least 1.2:1 (mitigation area to 

impact area). One commenter said that 

when the functional value of eelgrass 

and shellfish are combined, and the 

seascape matrix of habitats are 

considered, it is possible that a broader 

ecosystem perspective would find 

benefits from the presence of 

aquaculture. This commenter also stated 

that commercial shellfish farming 

activities have minimal negative to 

beneficial impacts on eelgrass and 

supports the Corps’ proposal to reissue 

NWP 48. One commenter remarked that 

interactions between seagrasses and 

shellfish mariculture must separately be 

addressed during Endangered Species 

Act and Essential Fish Habitat 

consultations for authorizations for 

shellfish farming activities in 

Washington State. 

Compensatory mitigation 

requirements for activities authorized by 

the NWPs are more appropriately 

determined by district engineers on a 

case-by-case basis after reviewing PCNs. 

If the district engineer reviews a PCN 

and determines the proposed activity 

will result in more than minimal 

adverse environmental effects, he or she 

will notify the applicant and provide an 

opportunity to the applicant to submit 

a mitigation proposal (see 33 CFR 

330.1(e)(3)). If, after reviewing the 

mitigation proposal, the district 

engineer determines the adverse 

environmental effects of the proposed 

activity will be no more than minimal, 

she or he will issue an NWP verification 

with permit conditions that require 

implementation of the mitigation. The 

Corps acknowledges that, when viewed 

from a seascape perspective, a district 

engineer may determine that the 

proposed shellfish mariculture will 

provide ecological benefits that should 

be factored in the district engineer’s 

decision regarding whether the 

proposed activity will result in no more 

than minimal adverse environmental 

effects. If the district engineer reviews a 

PCN for a proposed NWP 48 activity 

and determines the proposed activity 

may affect listed species or designated 

critical habitat, he or she will conduct 

ESA section 7 consultation with the 

U.S. FWS and/or NMFS and that section 

7 consultation may address potential 

impacts to seagrasses. If the district 

engineer reviews a PCN for a proposed 

NWP 48 activity and determines the 

proposed activity may adversely affect 

essential fish habitat, he or she will 

conduct essential fish habitat 

consultation with the NMFS and the 

NMFS may provide the district engineer 

with essential fish habitat conservation 

recommendations that may address 

potential impacts to seagrasses. 

Several commenters stated while 

shellfish mariculture can provide 

ecosystem services, some of which are 

similar to seagrasses and other benthic 

communities, there is no meaningful 

effort to discuss the numerous studies 

regarding impacts of a variety of 

aquaculture practices on submerged 

aquatic vegetation. Allowing 

commercial shellfish activities in new 

areas that have extensive beds of 

submerged aquatic vegetation could 

impact critical habitat for ESA-listed 

species. A couple commenters stated 

that tribes in the Puget Sound region 

have a unique interest in assuring that 

both salmon and shellfish are allowed to 

flourish. Consultation between Corps 

districts, tribes, federal, and state 

agencies are the appropriate entities to 

determine how best to protect 

submerged aquatic vegetation. A couple 

of commenters said that submerged 

aquatic vegetation is a critical resource 

requiring protection and removal of that 

protection from NWP 48 could create 

conflicts with other federal or state 

agencies such as NOAA Fisheries. These 

commenters asserted that some states, 

recognizing the need to protect these 

high-quality habitats have prohibited 

the siting of new mariculture leases in 

areas where surveys indicate the 

presence submerged aquatic vegetation 

in any one of the past five years. 

In the 2020 proposal and the draft 

decision document for NWP 48, the 

Corps provided a substantial discussion 

of the positive and negative impacts that 

commercial shellfish mariculture 

activities may have on seagrasses and 

other benthic organisms. Some of these 

impacts may be a result of activities 

under the Corps’ legal authorities; 

however, bivalve shellfish mariculture 

activities may have impacts that are 

beyond the scope of the Corps’ legal 

authorities. Under general condition 18, 

non-federal permittees must submit a 

pre-construction notification to the 

district engineer if any listed species or 

designated critical habitat (or species 

proposed for listing) might be affected 

or is in the vicinity of the activity, or if 

the activity is located in designated or 

proposed critical habitat, and shall not 

begin work on the activity until notified 

by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized (see paragraph (c) of general 

condition 18, endangered species). 

During the rulemaking process, district 

engineers have conducted consultation 

or coordination with tribes to identify 

regional conditions or coordination 

procedures that could be used to protect 

tribal trust resources and comply with 

general condition 17. Other federal 

agencies, as well as states, can develop 

regulations and policies to protect 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2799 

submerged aquatic vegetation under 

their authorities. 

A couple of commenters stated that 

the Corps thinks it is important to 

protect submerged aquatic vegetation in 

other contexts, but not under NWP 48. 

These commenters said that the Clean 

Water Act regulations provide for 

protection of special aquatic sites, 

which include ‘‘vegetated shallows’’ 

and that submerged aquatic vegetation 

beds are considered vegetated shallows. 

One commenter said that while the 

Corps states that all activities and 

structures must avoid submerged 

aquatic vegetation, but it doesn’t apply 

that principle to commercial shellfish 

mariculture activities. 

While the Clean Water Act Section 

404(b)(1) Guidelines provide a greater 

degree of protection to vegetated 

shallows (submersed aquatic vegetation) 

as special aquatic sites compared to 

aquatic resources that are not special 

aquatic sites, the Guidelines do not 

prohibit discharges of dredged or fill 

material into vegetated shallows (i.e., 

submerged aquatic vegetation beds). The 

404(b)(1) Guidelines only apply to 

discharges of dredged or fill material. 

They do not apply to activities 

authorized under Section 10 of the 

Rivers and Harbors Act of 1899. 

One commenter stated that submerged 

aquatic vegetation beds provide 

numerous ecosystem services including 

improving water quality, providing 

nursery habitat for commercial and 

recreationally significant fish and 

invertebrates, buffering shorelines from 

erosion, and sequestering carbon. 

Because of these additional functions 

performed by submerged aquatic 

vegetation, this commenter said that 

bivalve shellfish mariculture cages do 

not do any of these things and cannot 

be considered functionally equivalent 

habitat to submerged aquatic vegetation. 

As discussed in the 2020 Proposal 

and the national decision document for 

NWP 48, it is the bivalves that perform 

a number of the same ecological 

functions as submerged aquatic 

vegetation, not the structures in which 

these bivalves are grown. However, 

commercial shellfish mariculture 

structures do provide structural habitat 

for a wide variety of aquatic organisms, 

including substrate for organisms to 

attach to, and some aquatic organisms 

feed on the attached organisms. 

Structures used for commercial shellfish 

mariculture activities can slow the 

movement of water, and help reduce 

erosion of nearby shorelines. These 

impacts would be considered during the 

review of a PCN for a new or existing 

shellfish mariculture activity. 

One commenter noted that the 

argument that shellfish aquaculture 

activities only temporarily impact 

submerged aquatic vegetation is not 

accurate because leases issued for 

shellfish aquaculture vary in duration 

but are generally 5–20 years to ensure 

any investment in the enterprise is 

worthwhile. This commenter said that 

the word ‘‘temporary’’ is a highly 

relative and generally misleading 

descriptor. 

It is not the duration of the lease for 

shellfish mariculture activities that 

determines whether commercial 

shellfish mariculture activities have 

temporary impacts on submerged 

aquatic vegetation. Commercial shellfish 

mariculture operators might not 

cultivate bivalve shellfish continuously 

during the period the lease is in effect. 

The operator may let some areas within 

a leased area to go fallow for a period 

of time, to reduce adverse effects to the 

benthic community. The Corps agrees 

that the term ‘‘temporary’’ is a relative 

term, but disagrees that it is misleading. 

What constitutes a temporary impact 

depends in part on how much time it 

takes an organism or an ecosystem to 

recover from a disturbance, and how 

resilient and resistant the species or 

ecosystems are to disturbances. Coastal 

waters are highly dynamic 

environments subjected to periodic 

disturbances, both natural and manmade. 

Several commenters concurred with 

the Corps’ view that commercial 

shellfish mariculture activities typically 

only has temporary impacts on 

submerged aquatic vegetation and these 

plants can sustain a healthy coexistence. 

A few commenters noted that 

mechanical harvesting has been found 

to not negatively impact native eelgrass 

and may even enhance it. One 

commenter stated that the positive 

ecosystem services (e.g., better water 

quality, habitat creation, and ecosystem 

studies) provided by bivalve shellfish 

mariculture activities outweigh the 

temporary nature of any perceived 

negative impacts. The habitat created by 

shellfish aquaculture increases species 

richness and diversity of both benthic 

and epibenthic organisms. This threedimensional habitat is utilized by many 

commercially valuable species, such as 

Dungeness crab and flatfishes. The 

Corps acknowledges these comments. 

These beneficial effects have informed 

the Corps’ decision to reissue NWP 48 

as discussed because it will have no 

more than a minimal individual or 

cumulative adverse environmental 

effects. 

One commenter noted that farming 

methods such as bottom culture 

propagation tends to focus on the 

cultivation of larger older shellfish with 

large time intervals between harvests, 

which results in short term impacts at 

harvest with long periods for recovery 

and result in no permanent losses of 

submerged aquatic vegetation. This 

commenter said that the persistence of 

eelgrass along the coast demonstrates 

that shellfish mariculture and eelgrass 

can coexist and have for over a century. 

Furthermore, commercial shellfish 

mariculture operators have long 

understood the best way to propagate 

eelgrass is to plant oysters, which 

creates optimal habitat allowing eelgrass 

to expand due to decreased current over 

the tide flats. This commenter also said 

that the bivalve shellfish, as filter 

feeders, remove large amounts of 

waterborne nutrients resulting in 

cleaner water which facilitates 

photosynthesis, expanding habitable 

ranges of eelgrass. The Corps 

acknowledges these comments. These 

beneficial effects have informed the 

Corps’ decision to reissue NWP 48 as 

discussed because it will have no more 

than a minimal individual or 

cumulative adverse environmental 

effects. 

Several commenters recommended 

revising the definition of mechanical 

harvest so that they are not classified as 

‘‘dredge or fill’’ activities because it is 

too broad and lumps many methods 

together and lacks clarity. These 

commenters said that mechanical 

harvesting by dragging a metal basket 

along the tide flats to gently tumble 

harvestable oysters does not result in a 

discharge of dredge or fill material and 

should be exempt from section 404 

jurisdiction. Furthermore, these 

commenters said that these activities do 

not create ditches, channels, or 

substantially redeposit excavated soil 

material and none of the harvest tools 

are designed to remove large quantities 

of material to improve the navigability 

of waters. These commenters said that 

the sediment that may be disturbed 

during harvest should be considered as 

incidental fallback under 33 CFR 

323.2(d)(1). 

Mechanical harvesting activities 

generally do not result in discharges of 

fill material, as that term is defined at 

33 CFR 323.2(f). However, mechanical 

harvesting activities may result in 

discharges of dredged material, 

depending on how they are conducted. 

The term ‘‘discharge of dredged 

material’’ is defined at 33 CFR 323.2(d) 

to include the ‘‘addition of dredged 

material into, including redeposit of 

dredged material other than incidental 

fallback within, the waters of the United 

States.’’ Some mechanical harvesting 

2800 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

activities may result in incidental 

fallback and not require section 404 

authorization while other mechanical 

harvesting activities may result in 

additions of dredged material into 

waters of the United States that are not 

incidental fallback, and therefore 

require section 404 authorization. 

Mechanical and hydraulic harvesting 

activities that redeposit sediment in a 

different area of the bottom of the 

waterbody that the area from which the 

sediment was removed is considered a 

‘‘discharge of dredged material’’ and 

therefore requires section 404 

authorization. These discharges of 

dredged material into waters of the 

United States are authorized by NWP 

48. 

A commenter noted that in the 

statement ‘‘mechanical harvesting can 

include grading, tilling, and dredging 

the substrate of the waterbody’’ that the 

term ‘‘grading’’ does not describe 

shellfish culture methods. A couple of 

commenters suggested that shellfish 

mariculture harvest activities should be 

regulated like wild-harvest 

shellfisheries (e.g., as they are regulated 

in NWP 4). This commenter said that 

both wild and cultured shellfish are 

state-managed resources, with the 

exception of many tidelands in 

Washington, and should not require 

additional oversight and regulation by 

federal authorities. This commenter also 

stated that harvesting activities do not 

involve structures and do not impact 

navigation in a way that should trigger 

regulation under the Section 10 of the 

Rivers and Harbors Act of 1899. 

Mechanical harvesting activities may 

move sediment in a waterbody in a 

manner that is not considered incidental 

fallback. These activities would require 

section 404 authorization under the 

Corps’ definition of ‘‘discharge of 

dredged material.’’ Nationwide permit 4 

authorizes discharges of dredged or fill 

material associated with fish and 

wildlife harvesting, enhancement, and 

attraction devices and activities, 

including clam and oyster digging. The 

Corps has jurisdictional authority in 

Washington State for activities regulated 

under Section 10 of the Rivers and 

Harbors Act of 1899 and Section 404 of 

the Clean Water Act. Mechanical 

harvesting activities generally meet the 

definition of ‘‘work’’ at 33 CFR 322.2(c) 

for the purposes of Section 10 of the 

Rivers and Harbors Act of 1899, and are 

authorized by NWP 48. 

One commenter requested that the 

Corps add a statement in the final rule 

that acknowledges that the 

accumulation of sediment around 

shellfish farming gear may be 

considered beneficial in certain 

environments, as well as provision of 

year-round durable, structured threedimensional habitat. The Corps declines 

to add the requested statement because 

the potential benefits would need to be 

determined on a case-by-case basis, and 

the durability of those sediment 

accumulations is influenced because 

water movements that could cause that 

sediment to be re-suspended in the 

water column. 

One commenter said that the Corps 

must comply with ESA Section 7 and 

the Magnuson-Stevens Act prior to 

issuing NWP 48. A few commenters 

stated that in all areas where submerged 

aquatic vegetation exists, it is 

designated essential fish habitat under 

the Magnuson-Stevens Fishery 

Conservation and Management Act. 

These commenters said that removal of 

the 1⁄2-acre limit for direct impacts to 

submerged aquatic vegetation fails to 

acknowledge submerged aquatic 

vegetation as essential fish habitat and 

the need for consultation with NMFS for 

activities that may adversely affect 

essential fish habitat. These commenters 

asserted that the Corps must consult on 

a nationwide programmatic basis 

because essential fish habitat is 

adversely affected by shellfish 

mariculture activities. 

The NWP program’s compliance with 

the essential fish habitat (EFH) 

consultation requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act is 

achieved through EFH consultations 

between Corps districts and NMFS 

regional offices. This approach 

continues the EFH Conservation 

Recommendations provided by NMFS 

Headquarters to Corps Headquarters in 

1999 for the NWP program. Corps 

districts that have EFH designated 

within their geographic areas of 

responsibility coordinate with NMFS 

regional offices, to the extent necessary, 

to develop NWP regional conditions 

that conserve EFH and are consistent 

the NMFS regional EFH Conservation 

Recommendations. If a district engineer 

determines a proposed NWP 48 activity 

may adversely affect essential fish 

habitat, he or she will conduct EFH 

consultation with NMFS. Where there is 

a requirement to consult on EFH, 

consideration of direct impacts to 

submerged aquatic vegetation caused by 

new and existing commercial shellfish 

mariculture activities would occur 

regardless of the PCN threshold of 1⁄2- 

acre. In response to an EFH assessment 

prepared by the Corps, the NMFS may 

provide EFH conservation 

recommendations to address potential 

impacts to submerged aquatic 

vegetation. As discussed in Section III.D 

of this final rule, the Corps has prepared 

a biological assessment for this 

rulemaking activity and determined that 

the issuance of the NWPs has no effect 

on listed threatened and endangered 

species and designated critical habitat, 

as well as species proposed for listing 

and proposed designated critical 

habitat. 

One commenter stated that significant 

changes to NWP 48 are not appropriate 

until the national decision document is 

finalized and deemed sufficient. This 

commenter said the draft decision 

document fails to satisfy the 

requirements of the National 

Environmental Policy Act and the Clean 

Water Act, and that it fails to properly 

acknowledge the impacts of mariculture 

on benthic habitat, fish communities, 

birds, water quality and substrate 

characteristics. Several commenters 

stated that the proposed revisions to the 

national decision document for NWP 48 

do not fairly represent the conclusions 

of authors of the cited literature, in 

some cases omitting relevant 

information and in others 

misrepresenting study results and 

conclusions. 

The purpose of the national decision 

document is to provide information for 

the decision on whether to reissue NWP 

48. The national decision document 

discusses the positive and negative 

impacts of commercial shellfish 

mariculture activities on benthic 

habitat, fish communities, birds, water 

quality and substrate characteristics. 

The Corps has considered this 

information and determined that NWP 

48 will not have more than a minimal 

individual or cumulative adverse 

environmental effects. 

One commenter said that the Corps 

describes no studies in its decision 

document to verify its claim that 

commercially-raised shellfish help 

improve water quality. One commenter 

noted that the Corps acknowledges 

throughout the environmental 

consequences, public interest, and 

404(b)(1) Guidelines Analysis, some 

negative impacts, but then fails to assess 

them and instead focuses only on 

positive impacts. This commenter said 

that the impacts from mechanical and 

hydraulic dredging are barely 

mentioned, with no assessment of their 

harmful impacts to the same degree as 

the supposed benefits from shellfish 

aquaculture. 

The Corps discusses, in numerous 

places, the water quality benefits of 

filter-feeding bivalves that are cultivated 

by commercial shellfish mariculture 

activities. The Corps acknowledges that 

commercial shellfish mariculture 

activities cause adverse and beneficial 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2801 

environmental effects. Throughout the 

draft and final national decision 

documents, the Corps discusses the 

negative and positive effects of 

harvesting activities. 

One commenter identified errors in 

projected use and acreage impacted over 

the 5-year period NWP 48 is anticipated 

to be in effect. This commenter notes 

that the draft NWP 48 decision 

document states that the Corps 

estimates this permit will be used 

approximately 336 times per year on a 

national basis, resulting in impacts to 

approximately 13,360 acres of waters of 

the United States. It then states the 

Corps estimates that approximately 

1,680 activities could be authorized over 

a five-year period until the NWP 

expires, resulting in impacts to 

approximately 40,080 acres. While 

1,680 is five times the annual use figure 

(336), five times the annual acreage 

figure (13,360) is 66,800. One 

commenter requested that the Corps 

provide documentation on the number 

of permit request over the last 10 years 

that exceeded the 1⁄2-acre limit, and of 

those activities, how many ultimately 

received a permit through regional or 

individual permit process, and what 

conditions were applied to those 

applications. One commenter stated that 

the Corps claims to have no duty to use 

any quantitative data, but has issued 

NWP 48 since 2007 and should be able 

after all these years to provide some 

quantitative data about loss of 

seagrasses, natural habitats, etc. One 

commenter recommended that the 

Corps pursue a quantitative analysis of 

the environmental effects of shellfish 

mariculture for habitat alterations, 

climate change, invasive species, 

overharvesting and exploitation, and 

pollution. 

Nationwide permit 48 authorizes 

structures and work in navigable waters 

of the United States and discharges of 

dredged or fill material into waters of 

the United States for both existing (ongoing) and new commercial shellfish 

mariculture activities. Many of the 

activities authorized by NWP 48 are ongoing activities that require 

reauthorization each time the current 

NWP 48 expires and is replaced by a 

reissued NWP 48. Nationwide permits 

can be issued for period of no more than 

5 years (see Section 404(e) of the Clean 

Water Act). The acreage of projected 

impacts in the national decision 

document for NWP 48 includes many 

on-going commercial shellfish 

mariculture activities, many of which 

have been in operation for decades. 

These on-going commercial shellfish 

mariculture activities have been part of 

the current environmental setting for 

years, and it is the current 

environmental baseline against which 

the degree of severity of adverse 

environmental effects is assessed to 

determine eligibility for NWP 

authorization (i.e., whether the 

individual and cumulative adverse 

environmental effects caused by 

commercial shellfish mariculture 

activities during the 5-year period the 

NWP is in effect are no more than 

minimal). 

The Corps has revised the national 

decision document to correct the errors 

in its estimates of potential use of this 

NWP and authorized impacts. However, 

it should be noted that these are 

estimates of projected use over the 5- 

year period the NWP is anticipated to be 

in effect. With respect to the removal of 

the 1⁄2-acre limit for direct impacts to 

submerged aquatic vegetation caused by 

new commercial shellfish mariculture 

activities, the Corps is only required to 

provide an estimate of the number of 

activities that might occur during the 

period this NWP is in effect. It is not 

necessary to provide data on how many 

commercial shellfish mariculture 

activities were authorized by regional 

general permits or individual permits. 

The Council on Environmental 

Quality’s NEPA regulations at 40 CFR 

parts 1500–1508 do not require 

quantitative analyses of potential 

environmental impacts. With respect to 

the 404(b)(1) Guidelines, 40 CFR 

230.7(b)(3) requires cumulative effects 

to be analyzed by estimating the number 

of discharges expected to occur under 

the NWP while it is in effect. The 

environmental impacts of authorized 

activities during the period the NWP is 

in effect is dependent on the current 

environmental settings in which these 

activities will occur, and quantitative 

data on those current environmental 

settings is not available. It should also 

be noted that context is important, 

because these activities are occurring in 

coastal waters that have been altered by 

human activities and natural processes 

for thousands of years, and continue to 

be impacted by coastal watershed land 

use, point source pollution, non-point 

source pollution, fishing activities, 

recreation, and other disturbances, not 

just commercial shellfish mariculture 

activities. 

Several commenters stated it is 

unclear how mitigation can both be 

unnecessary and something the Corps is 

relying on to avoid cumulative impacts. 

Further, several commenters stated that 

the Corps relies heavily on mitigation at 

a district level, but fails to actually 

describe the possible effects (direct, 

indirect and cumulative) from shellfish 

aquaculture activities or how these 

unknown mitigation measures will 

actually avoid more than minimal 

adverse impacts. Any individual 

mitigation measures will only be 

attached if a permittee is required to 

submit a pre-construction notification, 

which will likely be few and far 

between. 

For commercial shellfish mariculture 

activities, the Corps generally does not 

require compensatory mitigation 

because these activities do not cause 

losses of waters of the United States. 

Paragraph (a) of general condition 23 

requires permittees to design their 

projects to avoid and minimize adverse 

effects, both temporary and permanent, 

to waters of the United State to the 

maximum extent practicable on the 

project site. Many of the NWP general 

conditions consist of mitigation 

measures to avoid and minimize 

impacts. When determining whether to 

require mitigation to ensure that a 

particular NWP activity results in no 

more than minimal individual and 

cumulative adverse environmental 

effects, the district engineer will 

consider the direct, indirect, and 

cumulative effects, as required by 

paragraph 2 of Section D, District 

Engineer’s Decision. If the district 

engineer requires mitigation for an NWP 

activity, he or she will add conditions 

to the NWP authorization (see 33 CFR 

330.1(e)(3)) that are directly related to 

the impacts of the proposal, appropriate 

to the scope and degree of those 

impacts, and reasonably enforceable 

(see 33 CFR 325.4(a)). 

One commenter stated that the Corps 

said that ‘‘standard and best 

management practices’’ can reduce 

impacts but fails to explain what these 

are and how they will mitigate impacts. 

One commenter said that the Corps 

claims commercially-reared bivalves 

improve water quality but fails to assess 

water quality impacts by deferring to 

district engineers and water quality 

certifications under Clean Water Act 

section 401, but impacts to water quality 

must be assessed before granting NWPs. 

One commenter said that the Corps fails 

to discuss the context and intensity 

factors that might indicate that this 

proposed NWP will have a ‘‘significant 

impact to the human environment’’ and 

thus requires an environmental impact 

statement. 

As stated in the 2020 Proposal, 

species-specific or regional standards 

and best management practices for 

commercial shellfish mariculture 

activities may be appropriate as regional 

conditions approved by division 

engineers (see 85 FR 57331). In the 

national decision document, the Corps 

has discussed potential impacts to water 

2802 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

quality as well as potential benefits to 

water quality that may result from 

commercial shellfish mariculture 

activities. In addition, the Corps has 

explained that cultivated bivalves are 

not considered a pollutant under the 

Clean Water Act. After considering the 

information in the national decision 

document for this NWP, including the 

potential benefits and detriments caused 

by commercial shellfish mariculture 

activities, there is no evidence that these 

activities cause a significant impact to 

the human environmental and thus no 

environmental impact statement is 

required. 

One commenter stated the alternatives 

analysis is inadequate. The commenter 

asserts that the Corps lists the ‘‘no 

action’’ alternative but barely analyzes 

it, strangely concluding that it would 

somehow have more substantial adverse 

environmental consequences. The 

‘‘national modification’’ alternative is 

not an alternative, but the proposed 

NWP 48 and the ‘‘regional 

modification’’ is also not an alternative 

because it includes no conditions or 

changes from the proposed NWP 48. 

The national decision document 

discusses alternatives. In the Council on 

Environmental Quality’s NEPA 

regulations that were published in the 

Federal Register on July 16, 2020, the 

preamble to the final rule at 85 FR 

43323 states that an agency does not 

need to include a detailed discussion of 

each alternative in an environmental 

assessment. In the national decision 

document, the Corps briefly discussed 

the environmental consequences of each 

alternative. 

One commenter said that the Corps 

should impose monitoring requirements 

that would ensure that NWP terms and 

conditions, including those resulting 

from subsequent exercises in 

discretionary authority, would be 

adequately policed. In response, Corps 

districts can conduct compliance 

inspections for authorized activities, to 

ensure that those activities are 

conducted in accordance with any 

conditions added to the NWP 

authorization. The Corps district will 

take appropriate actions to address noncompliance with permit conditions. 

Several commenters approved of the 

reiteration and clarification that the 

discharge of pesticides is regulated 

under Section 402 of the CWA and not 

Section 404. They suggested that the 

final rule clearly state that operators 

may be permitted to use pesticides to 

control agricultural pests and predators 

instead of just predators. One 

commenter said that the statement 

regarding commercial shellfish 

mariculture operations using chemicals 

to control fouling organisms is incorrect 

because chemical use or the potential 

introduction of toxic materials is 

regulated by the Interstate Shellfish 

Sanitation Conference. One commenter 

said that commercial shellfish 

mariculture operators may use 

herbicides to control invasive, noxious 

weeds on commercial clam beds. 

The Corps does not have the authority 

to control the use of pesticides, 

herbicides, and antifouling agents in 

commercial shellfish mariculture 

activities. Use of some of these 

chemicals may be regulated under other 

federal or state laws and regulations 

administered by other agencies. 

One commenter said that while gear 

sometimes escapes from commercial 

shellfish farms despite growers’ best 

efforts to ensure it remains secured, 

shellfish farmers do not discard 

equipment into the marine 

environment. This commenter requested 

that the Corps revise the national 

decision document to make it clear that 

growers are not discarding equipment, 

but equipment may wash away from the 

project site or move by other 

mechanisms. This commenter also said 

that NWP general condition 6 addresses 

the use of trash in the NWP program. 

One commenter said that the use of 

plastics gear for commercial shellfish 

mariculture activities adds plastic 

pollution to the ocean and beaches 

through plastic debris and this plastic 

can break down further into 

microplastics, which can impact 

wildlife, aesthetics, and food safety. 

The Corps has revised the national 

decision document to clarify that some 

materials used for commercial shellfish 

mariculture activities may wash away 

from the project area. General condition 

6 does not address trash or garbage that 

may be associated with commercial 

shellfish mariculture activities. General 

condition 6 prohibits the use of trash as 

fill material. Trash and garbage are not 

considered fill material for the purposes 

of section 404 of the Clean Water Act 

(see 33 CFR 323.2(e)(3)). 

This NWP is reissued with the 

modifications discussed above. 

(10) NWP 50. Underground Coal Mining 

Activities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed, which is 

discussed above in Section II.F. The 

responses to comments on the proposal 

to remove the 300 linear foot limit are 

provided in Section II.F. In addition, the 

Corps proposed to the reference to 

integrated permit processing procedures 

and the requirement for written 

verification from the Corps before 

proceeding with the authorized 

activities. 

Many commenters stated they are 

opposed to the default authorization if 

the Corps does not respond to the PCN 

submittal within 45 days. Numerous 

commenters said they support the 

automatic authorization if the Corps 

project manager does not respond to the 

complete PCN within 45 days. One 

commenter objected to the removal of 

PCN requirements. A few commenters 

said that in order to further expedite 

permitting for mining project, no PCN 

should be required for activities 

authorized by this NWP. 

The Corps removed the requirement 

for the permittee to obtain written 

authorization before commencing the 

activity to be consistent with the other 

NWPs that have a 1⁄2-acre limit for 

discharges of dredged or fill material 

into non-tidal waters of the United 

States (e.g., NWPs 29, 39, 40, 42, 43, 44, 

51, and 52). The Corps did not propose 

to remove any PCN requirements from 

this NWP. All activities authorized by 

this NWP require PCNs. The Corps is 

retaining the PCN requirements for this 

NWP to provide activity-specific review 

by district engineers to ensure that the 

activities authorized by this NWP result 

in no more than minimal individual and 

cumulative adverse environmental 

effects. 

A few commenters said that the 

applicability of this NWP would be 

reduced if the applicant must now 

include coal preparation and processing 

activities outside of the underground 

mine site as a single and complete 

project under NWP 50. One commenter 

stated the Corps provided no 

justification for the deletion of the Note 

regarding the use of NWP 21, coupled 

with NWP 50, for coal preparation and 

processing activities outside of the 

underground mine. One commenter 

expressed support for the removal of the 

integrated permitting process language. 

One commenter stated that NWP should 

state that the project proponent cannot 

begin the authorized activity until the 

activity is formally approved by the 

Department of Interior’s Office of 

Surface Mining or the state. Several 

commenters asserted the NWP 50 

should be revoked because the effects of 

coal mining are significant to the 

environment and should be evaluated 

under an individual permit. 

Even if the Note were not removed, 

single and complete underground coal 

mining activities with coal preparation 

and processing activities outside the 

underground mine site are subject to 

general condition 28, use of multiple 

NWPs. If NWP 50 and 21 are combined 

to authorize a single and complete 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2803 

project, the activity would be subject to 

the 1⁄2-acre limit. The Corps removed 

the language referencing integrated 

permit processing procedures, since 

those procedures have never been 

developed for this NWP since that text 

was added to the NWP in 2007 (see 72 

FR 11184). 

Project proponents may be required to 

obtain separate authorizations from the 

Department of Interior’s Office of 

Surface mining or the state, but those 

authorizations are a separate process 

from the Corps’ NWP authorization 

process. Authorization by an NWP does 

not obviate the need to obtain other 

federal, state, or local permits, 

approvals, or authorizations required by 

law. (See item 2 in Section E, Further 

Information.) Division engineers can 

add regional conditions to this NWP to 

restrict or prohibit discharges of 

dredged or fill material into certain 

wetland types if those discharges are 

likely to result in more than minimal 

individual and cumulative adverse 

environmental effects. District engineers 

can also exercise discretionary authority 

to modify, suspend, or revoke an NWP 

after reviewing the PCN, to ensure that 

the NWP authorizes only those activities 

that result in no more than minimal 

individual and cumulative adverse 

environmental effects. 

This NWP is reissued as proposed. 

(11) NWP 51. Land-Based Renewable 

Energy Generation Facilities 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed, which is 

discussed above in Section II.F. The 

responses to comments on the proposal 

to remove the 300 linear foot limit are 

provided in Section II.F. 

One commenter expressed support for 

the PCN threshold for losses of greater 

than 1⁄10-acre of waters of the United 

States and does not support requiring 

PCNs for all activities authorized by this 

NWP. One commenter said that these 

activities should be prohibited from 

channel migration zones and 

floodplains because they are likely to 

directly or indirectly affect critical 

habitat, essential fish habitat, and 

habitats occupied by listed species. This 

commenter stated that structures built 

in these zones are at heightened risk to 

flooding and future flood dynamics 

associated with climate change. This 

commenter also said that any impacts 

over 1⁄10-acre should require mitigation. 

The Corps did not propose to change 

the 1⁄10-acre PCN threshold for this NWP 

that was adopted in the 2017 NWP 51. 

Activities authorized by this NWP must 

comply with general condition 10, fills 

in 100-year floodplains. If the district 

engineer determines a proposed activity 

may adversely affect essential fish 

habitat, he or she will conduct essential 

fish habitat consultation with NMFS. If 

the district engineer determines the 

proposed activity may affect listed 

species or designated critical habitat, 

she or he will conduct ESA section 7 

consultation with the U.S. FWS and/or 

NMFS. In accordance with general 

condition 23 and 33 CFR 330.1(e)(3), 

district engineers determine on a caseby-case basis whether specific activities 

authorized by this NWP should require 

compensatory mitigation or other forms 

of mitigation to ensure the authorized 

activities result in no more than 

minimal individual and cumulative 

adverse environmental effects. 

One commenter recommended adding 

roads constructed to develop, maintain, 

and repair land-based renewable 

generation facilities to Note 1. One 

commenter stated that the NWP 51 

makes reference to a distribution system 

as utility lines constructed to transfer 

the energy produced by a land-based 

renewable energy generation facility, 

but elsewhere in the proposed rule it 

refers to electrical lines as ‘‘transmission 

lines’’ which is an undefined term. Two 

commenters suggested revising Note 2 

to state that NWPs C and 14 may be 

used to provide DA authorization for the 

construction, maintenance, repair, and 

removal or utility lines and/or road 

crossings. This commenter also said that 

the Corps should clarify that the 

applicant can specify which NWP it 

wants to use for utility lines and/or road 

crossings. 

Note 1 only addresses electric utility 

lines used to transfer the electrical 

energy generated by these facilities to a 

distribution system, regional grid, or 

other facility. Transmission lines are 

part of electrical energy distribution 

systems to move the electricity from 

generation facilities to end users. Note 

1 has been modified to specifically refer 

to electric utility lines because these 

land-based renewable energy generation 

facilities generate electrical energy. The 

Corps has revised Note 1 to reference 

NWP 57, which authorizes electric 

utility line and telecommunications 

activities. Activities authorized by NWP 

51 are non-linear projects, while electric 

utility lines used to transport the 

generated electrical energy to end users 

and others are linear projects that are 

more appropriately authorized by NWP 

57. Roads that extend to and from the 

land-based renewable energy generation 

facility are also linear projects, and 

crossings of waters of the United States 

for these roads are more appropriately 

authorized by NWP 14. This NWP is 

reissued with the modifications 

discussed above. 

(12) NWP 52. Water-Based Renewable 

Energy Generation Pilot Projects 

The Corps proposed to modify this 

NWP to remove the 300 linear foot limit 

for losses of stream bed, which is 

discussed above in Section II.F. The 

responses to comments on the proposal 

to remove the 300 linear foot limit are 

provided in Section II.F. 

Many commenters said that the Corps 

should modify NWP 52 so that it is not 

limited to pilot projects, because this 

restriction limits project proponent’s 

ability to utilize the NWP to facilitate 

the development of off-shore wind 

generation projects. These commenters 

said that the impacts are the same 

regardless of whether a water-based 

renewable energy generation project is a 

pilot project or a full-scale development 

project, and that the adverse 

environmental effects caused by these 

activities will be no more than minimal. 

A couple of commenters noted that as 

off-shore wind energy generation 

continues to grow it will become more 

crucial that these projects are able to 

obtain Corps authorization in a timely 

and efficient manner. A couple of 

commenters said that these projects 

should require individual permits and 

should not be authorized by an NWP. 

The Corps believes that the 

construction of permanent water-based 

renewable energy generation facilities 

should be authorized by individual 

permits instead of an NWP because of 

the potential for permanent activities to 

result in more than minimal adverse 

environmental effects. District engineers 

can develop regional general permits to 

authorized permanent water-based 

renewable energy generation facilities. 

One commenter stated that the 1⁄2-acre 

limit and the requirement for PCNs for 

all proposed activities should be 

retained. One commenter recommended 

changing the PCN threshold to require 

PCNs for losses of greater than 1⁄10-acre 

of waters of the United States. A couple 

of commenters said that Note 1 should 

be revised to reflect authorization of 

transmission lines by NWP C rather 

than NWP 12. 

The Corps is retaining the 1⁄2-acre 

limit and the requirement that all 

authorized activities require PCNs. The 

Corps has revised Note 1 to reference 

electric utility lines and NWP 57, which 

authorizes electric utility line and 

telecommunications activities. 

Several commenters stated that these 

activities should not be authorized 

western Washington State without tribal 

consent in areas with tribal treaty 

fishing rights. These commenters said 

2804 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

that allowing floating solar panels up to 

1⁄2-acre in size in navigable waters adds 

additional obstructions to tribal 

fisherman trying to exercise their fishing 

rights. One commenter stated that 

floating solar panels, if installed, need 

proper monitoring requirements with 

the ability to have the projects removed 

if the injuries to fish reach a certain 

threshold. One commenter said that 

pilot projects for experimental purposes 

should include a requirement for robust 

information gathering to inform 

decision makers of ecological impacts of 

these energy generating structures. 

Division engineers can add regional 

conditions to this NWP to help ensure 

compliance with general condition 17, 

tribal rights. During this rulemaking 

process, Corps districts have been 

consulting and coordinating with tribes 

to identify regional conditions and 

coordination procedures to help ensure 

compliance with general condition 17. 

The Corps disagrees with imposing 

long-term information gathering 

requirements to monitor the ecological 

impacts that might be caused by these 

activities. The information in PCNs 

should be sufficient for district 

engineers to determine whether the 

adverse environmental effects caused by 

the authorized activities are no more 

than minimal. 

This NWP is reissued with the 

modifications discussed above. 

(13) NWP 55. Seaweed Mariculture 

Activities 

The Corps proposed this new NWP as 

NWP A, to authorize structures in 

navigable waters of the United States, 

including federal waters over the outer 

continental shelf, for seaweed 

mariculture activities. In the first 

sentence of this NWP, the Corps added 

‘‘and estuarine’’ to make this NWP 

consistent with proposed new NWP B 

for finfish mariculture activities with 

respect to the waters in which these two 

NWPs may be used to authorize 

activities under Section 10 of the Rivers 

and Harbors Act of 1899. The omission 

of ‘‘and estuarine’’ in the proposed NWP 

A was a drafting error. 

The Corps removed the phrase ‘‘and 

work’’ from this NWP because this NWP 

only authorizes structures, and this 

NWP does not authorize any of the 

operational aspects of seaweed 

mariculture activities. The operation of 

a seaweed mariculture facility does not 

constitute ‘‘work’’ as that term is 

defined at 33 CFR 322.2(c) for the 

purposes of Section 10 of the Rivers and 

Harbors Act of 1899. Section 322.2(c) 

defines ‘‘work’’ as ‘‘any dredging or 

disposal of dredged material, 

excavation, filling, or other modification 

of a navigable water of the United 

States.’’ After the seaweed mariculture 

structure is installed, subsequent 

operations to produce seaweed do not 

physically modify navigable waters of 

the United States in a manner that 

would be considered ‘‘work’’ under the 

Act. 

Several commenters expressed 

support for the issuance of new NWP A. 

One commenter suggested combining 

NWPs 48 and A into one NWP instead 

of issuing separate NWPs. One 

commenter said that issuing NWP A 

would reduce barriers to entry for 

seaweed mariculture activities. Another 

commenter supported the issuance of 

NWP A because kelp and seaweed are 

winter crops and would help provide 

year-round revenue sources for coastal 

commercial communities. A few 

commenters expressed support for NWP 

A because growth of marine plants 

improves water quality and provides 

ecosystem services. 

The Corps is keeping NWPs 48 and 

proposed new NWP A separate because 

NWP 48 activities occur primarily in 

nearshore waters and NWP A can be 

used to authorize activities in both 

nearshore waters and federal waters on 

the outer continental shelf. The Corps 

acknowledges the economic benefits of 

providing an NWP to authorize seaweed 

mariculture activities that result in no 

more than minimal adverse 

environmental effects, as well as the 

ecological benefits that may be provided 

by the cultivated seaweeds, such as 

water quality benefits through the 

assimilation of nutrients and habitat 

benefits for some aquatic species. 

Several commenters said they support 

the inclusion of multi-trophic species 

production in NWP A. One commenter 

supported including multi-trophic 

species production as long as it is 

voluntary and not a requirement of the 

NWP. One commenter said that multitrophic activities should not be 

authorized under an NWP until an 

industry standard has been established. 

A few commenters stated multi-trophic 

activities should be authorized under by 

individual permits to provide an 

appropriate level of environmental 

review. One commenter said PCNs 

including that multi-trophic activities 

should be coordinated with states. A 

few commenters asserted that the text of 

NWP A should clarify that multi-trophic 

activities do not include finfish 

cultivation. One commenter stated that 

multi-trophic species mariculture could 

attract protected species and result in 

greater risk of entanglement. A few 

commenters said that the NWPs are 

appropriate only for activities with more 

predictable outcomes and should not be 

used for experimental industries. 

The Corps has retained multi-tropic 

mariculture activities in this NWP, to 

provide authorization for mariculturists 

that want to grow seaweeds and 

bivalves on the same structures. 

Conducting multi-tropic mariculture 

activities is optional, and a grower can 

choose to only cultivate seaweeds. 

District engineers will review PCNs for 

proposed NWP A activities to ensure 

that those activities will result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. If the district engineer reviews a 

PCN and determines that the adverse 

environmental effects will be more than 

minimal after considering any 

mitigation proposed by the applicant, he 

or she will exercise discretionary 

authority and require an individual 

permit. The Corps does not believe it is 

necessary to require coordination of 

proposed multi-tropic mariculture 

activities with states, but district 

engineers can informally coordinate 

PCNs with states if they believe it is 

appropriate to do so. If a mariculturist 

wants to grow finfish as part of a multitrophic mariculture operation, she or he 

should use NWP B (which, as discussed 

below, is issued in this final rule as 

NWP 56), which authorizes multitrophic mariculture activities involving 

finfish, seaweeds, and/or bivalves. 

There may be some risk of entanglement 

or other forms of adverse impact in lines 

used for seaweed mariculture activities, 

and that risk will be evaluated by 

district engineers during the PCN 

review process. If the risk of 

entanglement applies to ESA-listed 

species, the district engineer will 

conduct ESA section 7 consultation 

with the U.S. FWS and/or NMFS as 

appropriate. Multi-trophic mariculture 

activities have been conducted for a 

number of years in other countries 

(Largo et al. 2016, Troell et al. 2009). 

Several commenters said NWP A 

should not be issued because these 

activities will result in more than 

minimal individual or cumulative 

adverse environmental effects. Several 

commenters stated NWP A should not 

be issued because the long-term 

cumulative impacts are unknown. Many 

commenters expressed concern with the 

issuance of an NWP authorizing 

seaweed mariculture activities because 

of the relative unknown impacts and 

risks associated with these activities. 

One commenter said that the social, 

economic, and environmental impacts 

from seaweed mariculture are unknown. 

One commenter said that the 

cumulative impact from the varying 

scale of aquaculture systems cannot 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2805 

sufficiently be addressed under an 

NWP. Many commenters stated that 

there is not sufficient information 

available to inform whether NWP A 

would cause no more than minimal 

impacts. A few commenters said that 

the Corps has not demonstrated that 

NWP A complies with the Clean Water 

Act Section 404(b)(1) guidelines. 

The Corps has issued this NWP after 

considering information on its relatively 

small, if not beneficial, impact on 

marine ecosystems and including 

mechanisms (e.g., PCNs required for all 

proposed activities) to ensure that it 

authorizes only those seaweed 

mariculture activities that result in 

minimal individual and cumulative 

adverse environmental effects. In 

response to a PCN, district engineers 

will apply the 10 criteria listed in 

paragraph 2 of Section D, District 

Engineer’s Decision to determine 

whether the proposed activity can be 

authorized by NWP 55, with or without 

additional permit conditions. Division 

engineers may modify, suspend, or 

revoke this NWP on a regional basis in 

accordance with the procedures at 33 

CFR 330.5(c). The Clean Water Act 

Section 404(b)(1) Guidelines do not 

apply to activities authorized by this 

NWP because it only authorizes 

structures or work in navigable waters 

of the United States under Section 10 of 

the Rivers and Harbors Act of 1899. It 

does not authorize activities under 

Section 404 of the Clean Water Act. 

Several commenters said that NWP A 

would impact tribal rights and treaty 

protected fishing grounds. One 

commenter requested additional 

information and formal government-togovernment consultation on proposed 

new NWP A. One commenter objected 

to the issuance of NWP A because it 

does not include required mitigation 

measures. One commenter stated that 

mitigation measures should be 

considered for ESA-listed species and 

tribal cultural and fishing issues. One 

commenter suggested adding 

minimization measures to NWP A that 

are currently in place in states that are 

already practicing seaweed mariculture 

operations. 

Activities authorized by NWP A must 

comply with general condition 17, tribal 

rights. During the rulemaking process 

for the issuance of this NWP, district 

engineers have been conducting 

consultation and coordination with 

tribes to identify regional conditions 

and coordination procedures to 

facilitate compliance with general 

condition 17. In response to a PCN, a 

district engineer can require mitigation 

measures to help ensure that the 

authorized activity results in only 

minimal individual and cumulative 

adverse environmental effects. During 

the development of this NWP, the Corps 

did not identify any mitigation 

measures that should be added to this 

NWP, other than the general conditions 

that apply to all NWPs. Mitigation 

measures for ESA-listed species are 

more appropriately identified during the 

ESA section 7 consultation process. If 

states have developed mitigation 

measures for seaweed mariculture 

activities, division engineers can 

consider adding those mitigation 

measures as regional conditions to this 

NWP. 

Several commenters said that NWP A 

should include a PCN requirement. One 

commenter expressed support for 

requiring PCNs for new seaweed 

mariculture operations. One commenter 

said that PCNs should not be required 

if existing permitted bivalve shellfish 

farms want to add seaweed into their 

operations. One commenter stated that 

the U.S. Coast Guard be notified before 

issuing an NWP A verification. One 

commenter recommended requiring the 

PCN to include information identifying 

the proposed location of operations to 

review competing stakeholder uses. One 

commenter said that all PCNs for these 

activities must identify all gear 

specifications, production duration, 

stocking and harvesting times, and gear 

modifications related to avoiding or 

mitigating protected species 

interactions. Many commenters stated 

that PCNs for NWP A activities should 

require documentation of compliance 

with specific design and operational 

standards. One commenter said PCNs 

required for these activities should 

include information the performance of 

anchoring systems during severe 

weather events to minimize damage or 

loss. One commenter said that PCNs for 

these activities should state which 

commercial fisheries activities (wild or 

mariculture) might have the potential to 

be affected by the proposed activity or 

include a vicinity map indicating the 

location of the proposed activities. 

Proposed new NWP A requires PCNs 

for all proposed activities. Project 

proponents may be required to notify 

the U.S. Coast Guard or comply with 

U.S. Coast Guard requirements for 

marking or lighting these structures. It is 

not the responsibility of the Corps to 

notify the U.S. Coast Guard of these 

activities. Some Corps districts have 

developed local coordination 

procedures with the U.S. Coast Guard. 

Paragraph (b)(2) of general condition 32 

requires the PCN to include the location 

of the proposed activity. The Corps does 

not have the authority to regulate 

production duration and stocking and 

harvesting times. If the project 

proponent wants to modify the seaweed 

mariculture structures that are regulated 

under Section 10 of the Rivers and 

Harbors Act of 1899, he or she must 

notify the district engineer to request a 

modification of the NWP verification. 

Corps district regulatory staff do not 

have the legal authority or technical 

expertise to evaluate design or 

operational standards, or the structural 

integrity of the seaweed mariculture 

structures. It is the responsibility of the 

permittee to properly design the 

seaweed mariculture structures and 

ensure that they are properly 

maintained in accordance with general 

condition 14, proper maintenance. The 

Corps declines to require the PCN to 

identify which commercial fisheries 

species might be affected by the 

proposed seaweed mariculture activity 

because impacts to EFH are already 

considered when district engineers 

review PCNs and conduct EFH 

consultation with NMFS when they 

determine proposed NWP activities may 

adversely affect EFH. 

Many commenters said that seaweed 

mariculture activities should require 

individual permits. Several of these 

commenters stated that individual 

permits for these activities are 

appropriate because the public notice 

process would allow ample 

coordination with the affected public. A 

few commenters said that there is 

insufficient industry standardization 

within mariculture systems to issue an 

NWP for these activities and these 

activities should require individual 

permits. A few commenters said that 

individual permits should be required 

for these activities to allow proper 

environmental review and coordination 

with state natural resource agencies. 

The Corps believes that there are 

seaweed mariculture activities requiring 

authorization under Section 10 of the 

Rivers and Harbors Act of 1899 that will 

cause only minimal individual and 

cumulative environmental effects (see 

33 CFR 322.2(f)) and are appropriate for 

authorization by NWP. If a district 

engineer reviews a PCN for a proposed 

seaweed mariculture activity and 

determines that the adverse 

environmental effects will be more than 

minimal after considering mitigation 

proposed by the applicant, he or she 

will exercise discretionary authority and 

require and individual permit for the 

proposed activity. In addition, division 

engineers have the authority to modify, 

suspend, or revoke this NWP on a 

regional basis in response to concerns 

for the aquatic environment or for any 

factor of the public interest (see 33 CFR 

330.1(d)). The development of industry 

2806 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

standards is not a prerequisite for NWP 

authorization, and many activities that 

have long been authorized NWP do not 

have any industry standards. 

A few commenters stated that NWP A 

should require agency coordination 

under paragraph (d) of NWP general 

condition 32. One commenter said that 

NWP A PCNs should be coordinated 

with federal and state natural resource 

agencies of adjacent states and that 

applicable state permits must be 

obtained prior to the Corps issuing an 

NWP verification for seaweed 

mariculture activities. Many 

commenters said that seaweed 

mariculture activities should be 

coordinated with state resource agencies 

and the public. 

The activities authorized by this NWP 

may require consultation or 

coordination with the U.S. FWS or 

NMFS. Consultation with the U.S. FWS 

and/or NMFS is required for proposed 

activities that the district engineer 

determines ‘‘may affect’’ listed species 

or designated critical habitat. Essential 

fish habitat consultation with the NMFS 

is required for any proposed activity 

that the district engineer determines 

‘‘may adversely affect’’ essential fish 

habitat. Corps districts may develop 

informal coordination procedures with 

state resource agencies. Activities 

authorized by NWPs do not involve 

coordination with the public. 

Coordination with the public is only 

require for activities authorized by 

standard individual permits. 

One commenter said that seaweed 

mariculture activities authorized by 

NWP A should be limited to small scale 

projects. One commenter recommended 

adding a 1⁄2-acre limit to this NWP. One 

commenter stated that seaweed 

mariculture facilities for biofuels 

production are in the range of over 

1,000 hectares and issuing an NWP to 

authorize seaweed mariculture activities 

at that scale would not sufficiently 

consider the environmental risks. One 

commenter said that the necessary 

spatial arrays required for seaweed 

mariculture would cause conflicts from 

multiple existing offshore uses. 

The Corps does not agree that this 

NWP should be limited to small-scale 

project or activities less than 1⁄2-acre in 

size. If a project proponent submits a 

PCN for a large-scale seaweed 

mariculture activity, and the district 

engineer determines the proposed 

activity will result in more than 

minimal individual and cumulative 

adverse environmental effects, he or she 

will exercise discretionary authority and 

require an individual permit for the 

proposed activity. During the evaluation 

of the PCN, the district engineer will 

evaluate potential conflicts in resource 

uses, in accordance with the public 

interest review factors identified in 33 

CFR 320.4(a). 

Many commenters stated that the 

seaweed species to be grown should be 

the same indigenous genetic stock as 

found in the waters of the proposed 

seaweed mariculture activity. One 

commenter said that the terms and 

conditions of the proposed NWP 

address the introduction of non-native 

species but not the role that mariculture 

may play in the role of further spreading 

invasive or aquatic nuisance species. 

One commenter stated that NWP A 

should impose rigorous operation 

emergency response standards. One 

commenter stated that NWP A should 

have clear requirements for removing 

derelict structures. 

The Corps has modified this NWP to 

state that it prohibits the cultivation of 

an aquatic nuisance species as defined 

in the Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990 or 

the cultivation of a nonindigenous 

species unless that species has been 

previously cultivated in the waterbody. 

Invasive or aquatic nuisance species can 

spread or be introduced into new areas 

through a variety of mechanisms, and 

the Corps does not have the authority to 

prevent the spread or introduction of 

those species through those other 

mechanisms. General condition 13 

requires, to the maximum extent 

practicable, the removal of temporary 

structures from navigable waters after 

their use has been discontinued. For 

permanent structures, the Corps has 

added a provision to this NWP to 

require the permittee to remove these 

structures from navigable waters of the 

United States when those structures will 

no longer be used for finfish mariculture 

activities or multi-trophic mariculture 

activities. 

One commenter recommended 

requiring the siting of NWP A activities 

at least 200 meters away from corals, 

seagrass beds, mangroves, critical 

habitat, and migration pathways. A few 

commenters asserted that seaweed 

mariculture activities are known to 

impair water quality, and special 

aquatic sites such as coral, seagrass, and 

mangroves are especially susceptible to 

water quality impacts. A few 

commenters said that seaweed 

mariculture facilities should not be 

permitted near sensitive habitat areas or 

near marine protected areas. One 

Commenter remarked that seaweed 

mariculture activities could result in 

economic impacts to the region where 

these activities are located by interfering 

with commercial and recreational 

fishing activities. One commenter said 

that operations of seaweed mariculture 

activities could result in aesthetic 

impacts to the region. One commenter 

expressed concerns with potential 

impacts on navigation and public uses 

of the waterbody that may be caused by 

seaweed mariculture activities. One 

commenter stated that seaweed 

mariculture facilities should be distant 

from areas used by the public. One 

commenter said that NWP A should be 

revised to recognize that some state 

boundaries may extend beyond three 

nautical miles from shore. 

Based on the characteristics of 

regional ecosystems, division engineers 

can add regional conditions to this NWP 

to site NWP A activities specific 

distances from aquatic resources or 

areas that may warrant additional 

protection, such as corals, seagrass beds, 

mangroves, critical habitat, and 

migration pathways. Seaweed 

mariculture activities cultivate 

macroalgae that take up nitrogen and 

phosphorous and other nutrients from 

the water column and generally are 

understood to improve water quality. 

Organic matter may be sloughed off of 

the cultivated seaweeds, which can 

provide nutrients for benthic 

communities. The seaweed grown at 

seaweed mariculture facilities can 

provide economic benefits such as 

biofuels, food ingredients, and 

pharmaceuticals. When reviewing 

PCNs, district engineers will evaluate 

potential conflicts in use of navigable 

waters, such as fishing, recreational, and 

military uses, as well as potential 

impacts to aesthetics in the project area. 

Activities authorized by this NWP must 

comply with general condition 1, 

navigation. Navigable waters are 

available for a variety of public uses, as 

well as various types of activities 

authorized for private use. Activities 

authorized for private use often involve 

structures that require DA authorization 

under Section 10 of the Rivers and 

Harbors Act of 1899, which may include 

structures for seaweed mariculture 

activities. The variability in state 

boundaries for the purposes of 

identifying the territorial seas does not 

warrant any specific changes to NWP 

55. 

One commenter stated that shellfish 

farming activities are known to spread 

pathogens and the proposed NWP 

would not sufficiently address 

environmental concerns for offshore 

systems. A few commenters said 

seaweed mariculture facilities should 

not be permitted to use pesticides, 

herbicides, or pharmaceuticals. One 

commenter said that existing shellfish 

mariculture facilities permitted under 

NWP 48 should continue to be 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2807 

authorized under NWP 48 rather than 

authorized by NWP A. One commenter 

stated it would be more appropriate if 

seaweed was included under NWP 48 

because bivalves are typically the 

primary cultivated species. 

The Corps does not have the authority 

to take actions to control the spread of 

pathogens. Pathogens can spread 

through a variety of mechanisms in 

open systems such as oceans and 

estuaries. In addition, the Corps does 

not have the authority to regulate the 

use of pesticides, herbicides, and 

pharmaceuticals that might be used in 

seaweed mariculture activities. In this 

final rule, the Corps has issued separate 

NWPs for commercial shellfish 

mariculture activities and seaweed 

mariculture activities. Under NWP A 

bivalves can be grown with seaweeds 

are part of a multi-tropic mariculture 

activity. 

A few commenters said that proposed 

new NWP A would have impacts on 

ESA-listed species and designated 

critical habitat. One commenter stated 

that ESA Section 7 consultation should 

be mandatory for all seaweed 

mariculture projects. One commenter 

said that incidental take permits under 

the ESA should be obtained before 

district engineers issue NWP 

verifications for these activities. A few 

commenters said that NWP A activities 

should have severe consequences for 

non-compliance, including revocation 

of the NWP authorization. 

Activities authorized by this NWP 

must comply with general condition 18, 

endangered species. District engineers 

will review PCNs for proposed seaweed 

mariculture activities and if the district 

engineer determines the proposed 

activity may affect listed species or 

designated critical habitat, he or she 

will conduct ESA section 7 consultation 

with the U.S. FWS or NMFS as 

appropriate. If the district engineer 

initiates section 7 consultation with the 

U.S. FWS or NMFS, the NWP 

verification cannot be issued until that 

consultation is completed. District 

engineers will also take appropriate 

actions to address non-compliance with 

the conditions in NWP A. 

Proposed new NWP A is issued as 

NWP 55, with the modifications 

discussed above. 

(14) NWP 56. Finfish Mariculture 

Activities 

The Corps proposed this new NWP as 

NWP B, to authorize structures and 

work in navigable waters of the United 

States, including federal waters over the 

outer continental shelf, for finfish 

mariculture activities. 

The Corps removed the phrase ‘‘and 

work’’ from this NWP because this NWP 

only authorizes structures, and this 

NWP does not authorize any of the 

operational aspects of finfish 

mariculture activities. The operation of 

a finfish mariculture facility does not 

constitute ‘‘work’’ as that term is 

defined at 33 CFR 322.2(c) for the 

purposes of Section 10 of the Rivers and 

Harbors Act of 1899. Section 322.2(c) 

defines ‘‘work’’ as ‘‘any dredging or 

disposal of dredged material, 

excavation, filling, or other modification 

of a navigable water of the United 

States.’’ After the finfish mariculture 

structure is installed, subsequent 

operations to produce finfish do not 

physically modify navigable waters of 

the United States in a manner that 

would be considered ‘‘work’’ under the 

Act. 

Some commenters supported the 

issuance of this NWP and some 

commenters opposed issuance of this 

NWP. A couple of commenters said that 

this NWP does not authorize activities 

that are similar in nature. Many 

commenters said that finfish 

mariculture activities should require 

individual permits to give the public an 

opportunity to review proposed 

activities. One commenter stated that 

finfish mariculture activities could 

result in significant cumulative impacts 

on marine wildlife and the 

environment, which cannot be properly 

assessed and mitigated. One said that 

finfish mariculture activities in 

estuarine waters should require 

individual permits because of the high 

risk of water quality impacts, animal 

escapes, and habitat damage. 

This NWP authorizes structures in 

navigable waters of the United States for 

finfish mariculture activities. A category 

of activities for an NWP is based on the 

general characteristics and uses of the 

permitted activity. A category of 

activities is not based on potential 

configurations of the regulated 

activities, or the size of those activities. 

Concerns about the size of authorized 

activities and potential adverse 

environmental effects can be addressed 

in part by addition quantitative limits 

on the NWP. The Corps believes there 

are finfish mariculture activities that 

can result in no more than minimal 

individual and cumulative adverse 

environmental effects and are 

appropriate for NWP authorization. In 

addition, the NWP regulations at 33 CFR 

part 330 include numerous provisions 

that allow district engineers to exercise 

discretionary authority to require 

individual permits for activities when 

the determine those activities will cause 

more than minimal adverse 

environmental effects. Division 

engineers have the authority to modify, 

suspend, or revoke an NWP on a 

regional basis (see 33 CFR 330.5(c)). 

District engineers have the authority to 

modify, suspend, or revoke an NWP 

authorization on a case-by-case basis 

(see 33 CFR 330.5(d)). The potential 

individual and cumulative adverse 

environmental effects caused by finfish 

mariculture activities will be assessed 

by district engineers when they review 

PCNs for proposed activities. For some 

of the adverse environmental effects 

identified by commenters, the Corps 

lacks the authority to regulate the 

particular activities that are the cause of 

those effects. 

Several commenters recommended 

the development and implementation of 

project-specific permit conditions to 

ensure that authorized activities will 

have no more than minimal individual 

or cumulative adverse environmental 

effects. Several commenters requested 

that NWP B include conditions limiting 

the amount of feed, pesticides, 

herbicides, pharmaceuticals that can be 

released in project waters. A couple of 

commenters suggested NWP B require 

specific design and operation standards, 

including depth and current velocity 

guidelines for net pen siting class size. 

A commenter said that the geographic 

variability of aquatic environments and 

their ecological functions would be 

problematic when characterizing project 

impacts of finfish mariculture activities 

on a national scale. 

Project-specific conditions are more 

appropriately identified by district 

engineers when they review PCNs for 

proposed NWP B activities. If a 

proposed activity is authorized by NWP 

B, the district engineer will add 

appropriate conditions to the NWP 

authorization to help ensure that the 

adverse environmental effects are no 

more than minimal, individually and 

cumulatively. Permit conditions must 

be directly related to the impacts of the 

proposal, appropriate to the scope and 

degree of those impacts, and reasonably 

enforceable (see 33 CFR 325.4(a)). 

Potential permit conditions addressing 

finfish mariculture operations, such as 

amount of feed, pesticides, herbicides, 

pharmaceuticals that can be released in 

project waters are beyond the scope of 

the Corps’ legal authority, because the 

Corps does not have the authority 

regulate discharges of feed, pesticides, 

herbicides, and pharmaceuticals into 

navigable waters, including federal 

waters on the outer continental shelf. 

District engineers will review PCNs for 

proposed NWP B activities, which will 

include information on the design and 

size of the proposed structures. During 

2808 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

the evaluation of PCNs, district 

engineers consider the current 

environmental setting and the ecological 

functions currently being provided by 

aquatic resources in the vicinity of the 

proposed activity. 

A couple of commenters said that 

notification to the U.S. Coast Guard 

should be required for all proposed 

finfish mariculture projects to ensure 

that structures are not placed within 

restricted zones, shipping safety 

fairways, federal channels, traffic 

separation schemes or within U.S. EPAor Corps-designated open water dredged 

material disposal areas. The Corps 

believes it is the project proponent’s 

responsibility to notify the U.S. Coast 

Guard of the proposed activity, if such 

notification is required by law or 

regulations. 

One commenter stated that the 

availability of an NWP for finfish 

mariculture activities could be 

beneficial in promoting the business of 

finfish mariculture in areas where it is 

currently difficult to gain approval. The 

commenter added that growing seasons 

should be extended to allow for more 

jobs and tax revenue. One commenter 

suggested adopting location specific 

terms (freshwater, marine, offshore) and 

dropping the term ‘‘activity’’ and 

instead use ‘‘practice’’ 

The Corps proposed this NWP to 

provide authorization under Section 10 

of the Rivers and Harbors Act of 1899 

for structures used for finfish 

mariculture activities. Project 

proponents may be required to obtain 

other federal, state, and local 

authorizations required by law or 

regulation. This NWP does not have any 

limitations related to growing seasons. 

The Corps believes it has provided 

sufficient specificity regarding which 

types of waters this NWP can be used 

in (i.e., marine and estuarine waters), 

including the use of term ‘‘mariculture’’ 

instead of the broader term 

‘‘aquaculture.’’ The Corps’ authorization 

is limited to the installation of 

structures in navigable waters of the 

United States, which is why the term 

‘‘activity’’ is used. The Corps does not 

regulate the operation of the finfish 

mariculture facility during the 

production of finfish, and the activities 

associated with production activities 

such as feeding, handling, and 

administering antibiotics, therapeutics, 

and other chemicals. 

Regarding multi-trophic mariculture 

projects, one commenter stated that the 

activity is still considered experimental, 

with potential for adverse 

environmental impacts and a lack of 

proven success at commercial sales, and 

would therefore not be suitable for 

authorization under a NWP which 

should only be utilized for projects with 

predictable outcomes. The Corps 

understands that multi-trophic 

mariculture activities have been 

practiced in other countries (Largo et al. 

2016, Troell et al. 2009), so it is not an 

experimental approach. It is intended to 

cultivate different tropic levels to help 

reduce nutrient loads to surrounding 

waters. 

Many commenters stated that 

applicants should be required to clarify 

the species to be farmed as well as 

provide information on broodstock 

source and quantity. Several 

commenters said that PCNs should 

include project-specific details 

regarding configuration, structures, 

techniques, proposed production 

quantities, densities, spacing, and 

containment systems. One commenter 

recommended that the PCN include a 

decommissioning plan. 

The Corps has added text to this NWP 

to prohibit the cultivation of aquatic 

nuisance species as defined in the 

Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990 and 

the cultivation of nonindigenous species 

unless that species has been previously 

cultivated in the waterbody. The Corps 

only regulates the structures used for 

finfish mariculture activities, and their 

configuration in the waterbody. The 

Corps does not have the authority to 

regulate the techniques used to produce 

finfish, or how many finfish are 

produced over a specific period of time. 

If the project proponent wants to cease 

using the authorized structures for 

finfish mariculture activities, those 

structures must be removed. General 

condition 13 requires, to the maximum 

extent practicable, the removal of 

temporary structures from navigable 

waters after their use has been 

discontinued. For permanent structures, 

the Corps has added a provision to this 

NWP to require the permittee to remove 

these structures from navigable waters 

of the United States when those 

structures will no longer be used for 

finfish mariculture activities or multitrophic mariculture activities. 

A few commenters said that all finfish 

mariculture activities should require 

PCNs so that district engineers can 

evaluate consistency with 

environmental standards, impacts to 

navigation, commerce, fishing, and 

other resource use conflicts. One 

commenter suggested that the applicant 

should be required to disclose in the 

PCN the intended use of acoustic 

deterrent devices. Many commenters 

suggested that a higher level of detail 

should be required for finfish 

mariculture activity PCNs. A few 

commenters said the PCN should 

include a site analysis incorporating 

available spatial information including 

depth, wave climate, current velocity, 

substrate type, and proximity to any 

hard-bottom habitats. A couple of 

commenters stated that applicants 

should be required to provide detailed 

site maps, indicating the project 

location in relation to ecologically 

important marine/estuarine areas. One 

commenter said that applicants should 

be required to disclose the proposed 

activity’s proximity to other mariculture 

or commercial fishing operations. 

All activities authorized by this NWP 

require PCNs. The Corps does not have 

the authority to regulate the use of 

acoustic deterrent devices, so it would 

be inappropriate to require disclosure of 

the use of such devices in PCNs for 

proposed NWP B activities. The 

information requirements for PCNs in 

paragraph (b) of general condition 32 are 

intended to provide the information 

necessary for the district engineer to 

determine whether a proposed activity 

qualifies for NWP authorization without 

an excessive amount of paperwork. The 

Corps declines to require the suggested 

information for NWP B PCNs because it 

is not needed to assist the district 

engineer in the determination of NWP 

eligibility. 

A few commenters said that the PCN 

should include a detailed statement on 

avoidance and minimization measures 

regarding the following impacts: 

Attraction and entanglement of wild 

fish, sharks, mammals, and seabirds; 

effects of chemicals, antifoulants, feed, 

and waste on water quality, habitat, and 

marine life; physical effects of all 

structures on habitat and marine life; 

displacement, disruption and risks to 

existing fishing activities; economic 

impacts to fishing industries; and 

spatial conflicts with other ocean users. 

A few commenters said that the 

applicant should be required to provide 

prevention, monitoring, and response 

plans that address escapement of 

cultured adults, progeny, and gametes; 

release of antimicrobials; disease 

transmission to wild stocks; release of 

nutrients; chemical pollution; structural 

failures; entanglement of fishing gear 

and marine species; small vessel strikes; 

and marine debris. 

The Corps does not agree that the 

suggested information is necessary for 

PCNs for proposed NWP B activities to 

assist in the district engineer’s 

determination regarding whether the 

proposed activity regulated by the Corps 

(i.e., the placement of structures in 

navigable waters of the United States for 

finfish mariculture activities) is 

expected to result in no more than 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2809 

minimal individual and cumulative 

adverse environmental effects. Much of 

the suggested information relates to 

operational aspects of finfish 

mariculture operations, which the Corps 

does not have the authority to regulate 

or control. 

One commenter stated that under 

NWP review, there is potential for an 

applicant to begin work within 45-days 

of submitting a PCN, even if the 

permittee has not received a written 

response from the district engineer. The 

commenter said that the 45-day default 

authorization should not occur and that 

the proposed activity cannot proceed 

until the district engineer issues a 

written verification. 

After the Corps district receives a 

PCN, the prospective permittee cannot 

begin the activity until either: (1) He or 

she is notified in writing by the district 

engineer that the activity may proceed 

under the NWP with any special 

conditions imposed by the district or 

division engineer; or (2) 45 calendar 

days have passed from the district 

engineer’s receipt of the complete PCN 

and the prospective permittee has not 

received written notice from the district 

or division engineer (see paragraph (a) 

of general condition 32). If the permittee 

was required to notify the Corps 

pursuant to general condition 18 that 

listed species or designated critical 

habitat (or species proposed for listing) 

might be affected or are in the vicinity 

of the activity, the permittee cannot 

begin the activity until receiving written 

notification from the Corps that there is 

‘‘no effect’’ on listed species or that any 

consultation required under Section 7 of 

the Endangered Species Act has been 

completed. The Corps declines to add a 

provision to NWP B to require the 

project proponent to receive written 

authorization from the Corps prior to 

commencing the authorized activity. 

A couple of commenters expressed 

concern that structure placement within 

estuarine habitats may result in reduced 

current, velocity, altering circulation 

patterns, and consequently changing 

substrate characteristics. One 

commenter stated that the addition of 

artificial structures and moorings, and 

changes to seabed alter topography and 

hydrodynamics. Some commenters 

voiced concerns regarding the use of 

NWPs for emerging finfish mariculture 

activities, due to potential impacts on 

water quality, habitat, and wild species, 

requesting that activities in the area be 

reviewed through the individual permit 

process. 

The Corps acknowledges that 

structures placed in navigable waters 

may reduce water velocities to some 

degree and alter sediment transport and 

coastal erosion and deposition 

processes. District engineers will review 

proposed NWP B activities and 

determine whether it minimizes the 

impacts where practicable pursuant to 

general condition 23. Division and 

district engineers have discretionary 

authority to modify, suspend, or revoke 

NWP authorizations to further condition 

or restrict the applicability of an NWP 

when they have concerns for any factor 

of the public interest (see 33 CFR 

330.1(d)). 

Many commenters said that 

construction of finfish mariculture 

operations should be prohibited within 

a specific proximity to marine protected 

areas, submerged aquatic vegetation, 

reef communities, habitats with 

significant important to existing aquatic 

communities, migration pathways, at 

specific water depths, and those areas 

subject to chronic oxygen and nitrogen 

depletion. A few commenters stated that 

finfish mariculture activities should be 

prohibited from areas identified as being 

prone to hypoxia or otherwise 

ecologically sensitive. Several 

commenters said that increases in 

finfish mariculture projects would have 

the potential to damage the commercial 

fishing industry by either decreasing the 

need for wild fishing or by causing 

adverse impacts to the health and 

habitat of wild fished species. One 

commenter stated that finfish 

mariculture could have the potential to 

adversely impact local economies by 

pushing out responsible, small-scale 

seafood producers and crop growers. 

Several commenters expressed 

concern with spatial conflicts, 

specifically with fishing, fishery 

research cruises, and long-term ocean 

monitoring stations which occupy much 

of state and federal waters. Additional 

potential conflicts identified by 

commenters included gear 

entanglement, displacement from 

traditional fishing areas, navigational 

safety, and income loss. Many 

commenters raised concerns about 

project siting requirements, with one 

commenter suggesting that the Corps 

should be required to perform a spatial 

siting analysis prior to issuance of an 

NWP verification to ensure the 

proposed activity does not interfere 

with existing fisheries operations, 

research projects, or affect federal 

marine protected areas, and essential 

fish habitat. 

Impacts regarding navigation are 

localized and therefore it is more 

efficient for district engineers to 

evaluate potential impacts in their 

review of PCNs. Finfish mariculture 

operators have, absent any potential 

exceptions, the same rights to use 

navigable waters as other users such as 

fishers, recreational users, researchers, 

and commercial users as long as they 

obtain all required federal, state, and 

local authorizations. In addition to the 

authorization under Section 10 of the 

Rivers and Harbors Act of 1899, finfish 

mariculture operators may be required 

to obtain other federal, state, or local 

authorizations. The Corps does not have 

the authority to conduct spatial 

planning for finfish mariculture 

activities. If the district engineer 

determines a proposed NWP B activity 

may adversely affect essential fish 

habitat, he or she will conduct essential 

fish habitat consultation with NMFS. 

Activities in marine protected areas may 

be require authorizations from the 

federal or state agency that has 

management responsibilities for those 

areas. 

A couple of commenters stated that 

structures could cause interference with 

access to treaty protected fishing 

grounds for tribal fisherman. Several 

commenters said that these activities 

could impact recreational activities by 

closing off areas of navigable waters that 

would otherwise be used for boating, 

fishing, tourism, and other water-related 

activities. A few commenters stated that 

finfish mariculture activities would 

close off or privatize areas currently 

used by the commercial fishing 

industry. One commenter stated that 

finfish mariculture activities could have 

the potential to adversely impact local 

economies by pushing out responsible, 

small-scale seafood producers and crop 

growers. 

Activities authorized by NWP B must 

comply with general condition 17, tribal 

rights. District engineers will review 

PCNs for proposed NWP B activities and 

assess potential impacts to navigation, 

including boating, fishing, tourism, and 

other water-related activities that use 

those navigable waters. There are a 

variety of activities (e.g., piers, port 

facilities, marine hydrokinetic devices) 

authorized by the Corps in navigable 

waters under its section 10 authorities 

that preclude or restrict use by others. 

The potential economic impacts of 

finfish mariculture activities on local 

businesses and residents is outside the 

Corps’ control and responsibility. 

A couple of commenters said that 

finfish mariculture activities should 

raise farmed species that live in or 

adjacent to the body of water, to 

minimize the introduction of disease 

from species relocated from other 

regions. Another commenter suggested 

using only species native to the 

ecosystem where the finfish mariculture 

activity is located. One commenter 

requested the establishment of 

2810 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

exclusion zones, using assessments that 

consider not just the immediate area, 

but potential impacts to nearby waters 

as well. One commenter said that by 

requiring siting of finfish mariculture 

outside of known migratory pathways, 

predation from wild species may be 

minimized, entanglements may be 

reduced, and potential fish spills from 

net/cage damage by predatory species 

may also be reduced. One commenter 

suggested siting finfish mariculture 

activities in deep, open waters to 

minimize the effects of nutrient and 

sediment dispersal from the project site, 

which may cause increases in nitrogen 

and phosphorous levels, as well as 

increases in phytoplankton and algae. 

Several commenters said that finfish 

mariculture activities should not be 

authorized in estuarine waters to 

minimize adverse effects to water 

quality. A few commenters stated that 

the PCN review process does not 

provide for adequate planning and 

would eliminate project-specific public 

notice and comment period that would 

facilitate responsible site selection. 

The Corps does not have the authority 

to specify which species are cultivated 

at a finfish mariculture structure 

authorized by the Corps under section 

10 of the Rivers and Harbors Act of 

1899. In addition, the Corps does not 

have the authority to establish 

mariculture exclusion zones in 

navigable waters. Siting requirements 

on finfish mariculture activities may be 

imposed by other federal, state, or local 

government agencies. 

Many commenters expressed 

concerns regarding potential impacts to 

existing habitat, specifically coral reef 

systems, mangroves, and submerged 

aquatic vegetation that could be caused 

by increases in nutrient and sediment 

dispersal from the finfish mariculture 

operation. One commenter said that net 

pen structures and their associated 

anchoring systems have the potential to 

increase available habitat, supporting 

biodiversity, similar to engineered 

artificial reefs. In addition, this 

commenter said that the structures 

would prevent trawling of the benthic 

ecosystem within the footprint of the 

facility, further protecting species. 

When reviewing PCNs for proposed 

NWP B activities, district engineers will 

evaluate potential impacts on habitats in 

the vicinity of the proposed finfish 

mariculture structures. The Corps 

acknowledges that finfish mariculture 

structures can provide structural habitat 

that benefits some aquatic species, as 

well as providing some refuge from 

predators and fishers. 

Several commenters expressed 

concerned with the potential 

entanglement of wild fish and marine 

mammal species, stating that NWP 

review would not allow for adequate 

evaluation for potential impacts. One 

commenter discussed the potential for 

illegal extermination of predator species 

such as sea lions by operators of finfish 

mariculture facilities. A few 

commenters raised concerns regarding 

the use of acoustic deterrent devices, 

which they said are not consistently 

useful and have been known to cause 

deleterious impacts to non-target 

species. Other commenters stated that 

these activities would have the potential 

to attract and concentrate predators, 

which may lead to entanglements or 

vessel strikes. One commenter said that 

risks and impacts to protected species 

are minimized by existing federal 

requirements for operations, including 

the use of improved technologies and 

regular maintenance, such as linetightening, which has been shown to 

prevent accidental entanglement. A few 

commenters stated that this NWP must 

prohibit gear types known to cause 

harm to marine species. One commenter 

said that finfish mariculture structures 

should be removed from waters during 

peak seasons for protected species. 

If the district engineer determines that 

a proposed finfish mariculture activities 

may affect listed species or designated 

critical habitat, he or she will conduct 

ESA section 7 consultation with the 

U.S. FWS and/or NMFS. The operator of 

the finfish mariculture facility may also 

need to obtain authorization under the 

Marine Mammal Protection Act. The 

ESA section 7 consultation may result 

in permit conditions added to the NWP 

authorization to minimize the risk of 

entanglement of listed species. The 

Corps does not have the authority to 

regulate the management of predator 

species at a finfish mariculture facility, 

or the use of acoustic deterrent devices. 

The use of acoustic deterrent devices 

would be addressed through the ESA 

section 7 consultation process and/or 

the Marine Mammal Protection Act 

authorization process, if applicable. 

One commenter said that finfish 

mariculture operations should only be 

stocked with eggs, larvae, or juveniles 

from pen-raised lineages, in order to 

avoid the need for wild capture. 

Another commenter stated that the 

cultivated species should have the same 

indigenous genetic stock as individuals 

of the species in the waters where the 

proposed finfish mariculture activity is 

located. The Corps does not have the 

authority to impose requirements on the 

stocking of finfish mariculture facilities, 

or which genetic stocks are cultivated. 

Many commenters stated concerns 

with the potential for accidental fish 

escapements by individual species 

because the introduction of non-native 

species may spread pathogens and 

parasites to wild species, increase 

competition to at-risk communities, and 

cause genetic degradation among 

existing fish populations. Several 

commenters discussed the 2017 escape 

of over 200,000 non-native Atlantic 

salmon in the Puget Sound as a result 

of finfish mariculture operations, with 

some commenters requesting that these 

activities require individual permits, 

and other commenters stating that 

regional conditions should be 

implemented to ensure structural 

integrity of facility structure and 

prevent escape recurrences. One 

commenter said that although the Corps 

lacks the authority to regulate finfish 

escapes, it can require structures 

installed in navigable waters to be 

constructed to a standard where escape 

risks can be mitigated. One commenter 

stated that applicants should be 

required to report escape events to the 

Corps and that the Corps should 

maintain a database to monitor events 

and better prevent them in the future. A 

few commenters said that a universal 

standard should be developed that 

specifies requirements for the proposed 

finfish mariculture facilities and related 

features that would meet challenges 

posed by severe weather, and prevent 

potential escapements. 

The Corps does not have legal 

authority to regulate the potential 

escapement of cultivated finfish. The 

Corps acknowledges that finfish 

mariculture activities have the potential 

to facilitate the spread of pathogens and 

parasites, but the Corps does not have 

the authority to regulate or control those 

occurrences. General condition 14 

requires proper maintenance of 

authorized structures and fills. The 

project proponent is responsible for 

designing and constructing the finfish 

mariculture structures so that they have 

an appropriate degree of structural 

integrity. Since the Corps does not have 

the authority to address potential fish 

escapes, there would be no useful 

purpose served by requiring the 

operator to report escapes to the Corps, 

or for the Corps to maintain a database 

to track escape events. 

One commenter said that all 

mariculture operations should be 

considered point sources under the 

Clean Water Act and be required to 

obtain discharge permits. This 

commenter also said that routine 

disease testing and other water quality 

monitoring should also be mandated. 

One stated that effects to water quality 

within the local environment from other 

sources would have the potential to 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2811 

cause impacts to cultured species and 

subsequently economic returns of the 

finfish farm, suggesting that 

maintenance of the facility would be in 

the best interest of the operation and 

thus encourages management operations 

that support the local environment. 

Some commenters said that finfish 

mariculture activities can cause changes 

to benthic community composition 

beneath and adjacent to structures 

because of excess feed, feces, and 

antifoulant accumulation. A couple of 

commenters stated that finfish 

mariculture projects should be held to 

the same regional water quality standard 

as offshore seafood processors. Several 

commenters expressed concern with the 

ingredients utilized in fish feed, which 

one commenter said often contains toxic 

heavy metals like cadmium and zinc 

and recommended that feed formulation 

and efficiencies be standardized and 

managed in order to lessen adverse 

environmental impacts. Another 

commenter suggested that finfish 

mariculture operators should be 

required to publish reports with the 

complete traceability of all mariculture 

feed products. One commenter asserted 

that permittees be required to provide 

proof that the finfish mariculture 

operations would not contribute to 

hypoxia in receiving waters. 

Some finfish mariculture operations 

may require authorization under Section 

402 of the Clean Water Act for 

discharges from finfish mariculture 

operations. Section 402 of the Clean 

Water Act is administered by the U.S. 

EPA or states with approved programs. 

The Corps lacks the authority to require 

disease testing and water quality 

monitoring. Water quality monitoring 

may be required by states in estuaries 

and the territorial seas. The Corps 

acknowledges that finfish mariculture 

activities can have effects on benthic 

communities. The Corps does not have 

the authority to regulate the production 

of finfish after the mariculture facility is 

constructed. 

Several commenters expressed 

concerns about the potential effects of 

the use of antimicrobials, pesticides, 

and anti-foulants, and the introduction 

of excess feed and fish waste in project 

waters. These commenters stated that 

use of these materials could lead to 

degradation of water quality, risking 

public health, and increase organic 

nutrient loads leading to eutrophication, 

causing widespread damage to wildlife. 

A few commenters said that industrial 

finfish mariculture operations may 

cause adverse impacts to public health, 

as the antibiotics, pesticides, and other 

chemicals that are heavily used to 

prevent disease and parasites in farmed 

species could accumulate in fish tissues 

to be consumed by the public. One 

commenter stated that these issues have 

influenced other countries like Canada, 

Argentina and Denmark, to move away 

from industrial finfish mariculture. 

The Corps does not have the authority 

to regulate the use of antimicrobials, 

antibiotics, pesticides, anti-foulants and 

other chemicals, how feed is provided 

to the cultivated finfish, or the 

composition of that feed and its 

potential effects on water quality. Water 

quality concerns may be addressed 

through state or federal water quality 

standards under the Clean Water Act, or 

state laws. 

A couple of commenters said that 

ESA section 7 consultation should be 

mandatory for all proposed finfish 

activities and that all applicants should 

be required to obtain an incidental take 

permits for potential effects to listed 

species. One commenter stated that 

NOAA would be the appropriate agency 

to provide expertise in reviewing and 

assigning specific permit terms in regard 

to site selection, conflicts between 

aquaculture projects, marine resources, 

other ocean users, and wild-capture 

fisheries. A couple of commenters said 

that individual finfish mariculture 

projects should be coordinated with 

state natural resource agencies to 

identify regional and site-specific 

concerns, needs analyses, and projectspecific conditions. 

All activities authorized by this NWP 

require PCNs. If the district engineer 

reviews a PCNs and determines that any 

proposed activity may affect listed 

species or designated critical habitat, he 

or she will conduct ESA section 7 with 

the U.S. FWS and/or NMFS as 

appropriate. Incidental take permits are 

issued under Section 10(a)(1)(B) of the 

ESA, not section 7(a)(2). The Corps 

declines to add a provision to this NWP 

requiring coordination with state 

natural resource agency, whose legal 

authorities are highly variable and 

generally do not apply in federal waters. 

One commenter questioned the Corps’ 

reliance on general condition 23 to 

minimize project impacts. Another 

commenter said that all NWP B 

applicants should be required to 

provide a mitigation plan. Several 

commenters voiced concern over the 

risk for breakage of anchored mooring 

systems for finfish mariculture 

structures during significant weather 

events, which increases risks to 

navigational safety and marine debris. 

Additional concerns regarding marine 

debris were voiced by another 

commenter, who suggested that 

operators may dispose of solid waste 

into waters rather than through 

appropriate methods. One commenter 

recommended requiring agency 

coordination for proposed NWP B 

activities under paragraph (d) of general 

condition 32. 

General condition 23 provides the 

mitigation requirements for the NWPs. 

District engineers can require the project 

proponent to submit a mitigation plan 

if, after reviewing a PCN, the district 

engineer determines that mitigation is 

necessary to ensure the authorized 

activity will cause no more than 

minimal individual and cumulative 

adverse environmental effects. The 

project proponent is responsible for 

designing and constructing the finfish 

mariculture facility so that it complies 

with applicable engineering standards, 

and will maintain structural integrity 

within the appropriate parameters of sea 

and weather conditions, and potential 

predatory behavior by large vertebrates. 

The Corps does not believe that agency 

coordination under paragraph (d) of this 

NWP is necessary for these activities. 

One commenter asserted that the draft 

decision document for NWP B did not 

meet NEPA requirements, stated that it 

lacked adequate discussion on purpose 

and need, which the public needs for 

consideration of the scope of reasonable 

alternatives. One commenter said that 

an environmental impact statement 

should be required for approval of NWP 

B, claiming that the Corps failed to 

adequately discuss how potentially 

significant impacts will be mitigated 

below the level of significance in the 

draft decision document. One 

commenter stated the Corps failed to 

address potential adverse cumulative 

impacts at a regional level where 

specific locations recently identified by 

NOAA are more likely to be impacted. 

The national decision document for 

this NWP was revised to address the 

requirements for environmental 

assessments in the Council on 

Environmental Quality’s NEPA 

regulations that were published in the 

Federal Register as a final rule on July 

16, 2020 (85 FR 43304). A section on 

purpose and need was added to the 

national decision document. The Corps 

made a finding of no significant impact. 

Therefore, an environmental impact 

statement is not required for the 

issuance of this NWP. The national 

decision document considers the 

cumulative effects expected to occur as 

this NWP is used during the 5-year 

period it is anticipated to be in effect, 

and it is a national analysis since the 

geographic scope of the national 

decision document is the United States. 

Division engineers consider cumulative 

effects of NWP activities on a regional 

basis. 

2812 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

One commenter stated that the 

minimal effect determination is 

conclusory, as no quantitative impact 

limits, general conditions, or regional 

conditions have been specified and the 

impact section did not provide 

discussion on any foreseeable or 

unknown impacts. One commenter said 

that the Corps’ minimal effects 

determination should provide estimates 

for the anticipated size of mariculture 

operations to be permitted under NWP 

B and potential impacts of those 

operations based on known impacts of 

net pen finfish mariculture. 

The Corps did not provide a minimal 

effects determination in the draft 

national decision document, so the 

commenter cannot say that it is 

conclusory. The NWPs are not required 

to have quantitative impact limits, and 

the proposed NWP general conditions 

were provided in the proposed rule. The 

regional conditions have not been 

finalized by division engineers. The 

draft decision document discusses 

reasonably foreseeable impacts. The 

Corps is not required to consider 

speculative impacts. The Corps did 

provide estimates of the impacts that 

may occur during the 5-year period this 

NWP is anticipated to be in effect. 

Proposed NWP B is issued as NWP 

56, with the modifications discussed 

above. 

(15) NWP 57. Electric Utility Line and 

Telecommunications Activities 

The Corps proposed this new NWP as 

NWP C, to authorize discharges of 

dredged or fill material into waters of 

the United States, and structures and 

work in navigable waters of the United 

States, for electric utility line and 

telecommunications activities. 

Many commenters expressed support 

for the proposal to issue a separate NWP 

for electric utility line and 

telecommunications activities. They 

said that the creation of this new NWP 

for electric utilities represents a tailored 

approach to regulated industries and 

effectively addresses differences in how 

the various types of utilities are 

constructed, installed, maintained, and 

removed. Many commenters supported 

retaining the basic structure of the 2017 

NWP 12 for proposed new NWP C, as 

well as continuing the longstanding 

definition of ‘‘single and complete’’ 

project, providing authorization for 

temporary structures, fills, and work, 

and imposing the same acreage limits. 

One commenter supports the Corps’ 

proposal to include the list of structures 

and fills in NWP C, including utility 

lines, substations, foundations for 

towers poles and anchors, access roads, 

temporary structures, fill, and work for 

remediation of drilling fluid returns 

from horizontal directional drilling, and 

temporary structures, fill, and work 

including temporary mats for utility line 

and telecommunications activities. 

The Corps is issuing NWP C to 

authorize discharges of dredged or fill 

material into waters of the United States 

and structures and work in navigable 

waters of the United States for electric 

utility line and telecommunications 

activities. For the text of NWP C, the 

Corps has retained a structure similar to 

the structure of NWPs 12 and D, and 

there are some differences in the 

specific text of NWPs 12, C, and D to 

address differences in utility line 

sectors. The Corps is also retaining the 

regulatory approach for authorizing 

single and complete linear projects, 

where each separate and distant 

crossing of waters of the United States 

may be covered by its own NWP 

authorization. The corps is also 

retaining the 1⁄2-acre limit for each 

separate and distant crossing of waters 

of the United States and for the 

construction, maintenance, or 

expansion of substations for electric 

utility and telecommunications lines. 

The Corps is also including the 

authorization of temporary structures 

and fills, as well as DA authorization for 

remediation activities requiring DA 

authorization that may be needed to 

address inadvertent returns of drilling 

fluids, consistent with NWPs 12 and D. 

Many commenters stated that they 

expect court challenges to oil and gas 

pipeline activities to continue, and 

therefore support the issuance of a 

separate NWP for electric utility line 

and telecommunications activities. By 

creating a separate NWP for these 

activities, it is the hope of these 

commenters that these electric 

infrastructure activities will not be 

disrupted by future NWP 12 litigation. 

The Corps acknowledges that the 

issuance of NWP C can help reduce 

regulatory uncertainty for entities that 

construct and maintain electric utility 

lines and telecommunications lines. 

Past litigation on NWP 12, especially for 

oil or natural gas pipelines, has caused 

concerns about the availability of NWP 

authorization for electric utility lines 

and telecommunication lines and their 

ability to serve people living in the 

United States. 

Several commenters noted that 

proposed NWP C is important as the 

scale of electrical energy generation 

from renewable energy sources 

increases. These commenters said there 

will be a need for additional electric 

transmission facilities to convey the 

electricity from the generation facilities 

to the end users. Several commenters 

stated that proposed NWP C will satisfy 

Section 404(e) of the Clean Water Act by 

authorizing activities that have no more 

than minimal adverse environmental 

effects, while continuing to allow for 

timely and efficient authorization of 

these activities. These commenters said 

that the techniques used to construct, 

maintain, and repair most electric 

transmission lines generally result in 

fewer impacts to waters of the United 

States compared to the techniques used 

to construct other types of utility lines. 

Several commenters requested that the 

Corps not issue proposed NWP C, 

stating that the activities authorized by 

this NWP would cause significant 

adverse impacts in violation of Section 

404(e) of the Clean Water Act. These 

commenters said individual permits 

should be required for these activities. 

The Corps also appreciates the 

potential for new NWP C to support 

electric energy generation from 

renewable energy generation facilities, 

including activities authorized by NWPs 

51 and 52. The Corps believes that the 

conditions for NWP C, including the 

reviews of PCNs for certain activities 

authorized by NWP C and the ability of 

division and district engineers to 

modify, suspend, and revoke NWP C 

authorizations, will help ensure that 

activities authorized by NWP C result in 

no more than minimal individual and 

cumulative adverse environmental 

effects. 

A few commenters noted that the 

issuance of NWP C would allow the 

Corps to incorporate industry-specific 

standards, appropriate regional 

conditions, and best management 

practices tailored to each utility line 

NWP. A few commenters said that 

proposed NWP C is important because 

the process of applying for and 

obtaining an individual permit is time 

consuming, expensive, and subject to 

regulatory uncertainty. These 

commenters said that increased costs 

and burdens that result from the 

individual permitting process can affect 

not only the members, but the amount 

of costs that are passed on to consumers 

and indirectly borne by the rural public. 

One commenter stated that the 

availability of NWPs authorizing the 

construction, maintenance, repair, and 

removal of utility lines and associated 

facilities is essential to the expansion of 

necessary infrastructure to remote areas 

in the United States. 

In this final rule, the Corps discusses 

suggestions for best management 

practices and national standards that 

commenters provided in response to the 

2020 Proposal. The Corps acknowledges 

that the issuance of NWP C will further 

the objective of the NWP program, 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2813 

which is to regulate with little, if any, 

delay or paperwork certain activities 

having minimal impacts (33 CFR 

330.1(d)). 

One commenter stated that fiber optic 

lines should be specifically added to the 

definition of electric utility line and 

telecommunication line. One 

commenter recommended retaining the 

following provision in proposed NWP 

C: ‘‘there must be no change in preconstruction contours of waters of the 

United States.’’ One commenter said 

that the integrity of power lines in their 

service area could be severely 

compromised if vegetation management 

must be stopped while they obtain 

individual permits for this necessary 

and routine activity. Vegetation along 

electric utility rights of way must be 

maintained to prevent trees or other 

vegetation from bringing down power 

lines and, during dry conditions, 

preventing power lines from 

contributing to wildfires. 

The Corps has added fiber optic lines 

to the definition of electric utility line 

and telecommunication line. The 

requirement that NWP C activities 

associated with the construction, 

maintenance, repair, and removal of 

electric utility lines and 

telecommunications lines result in no 

change in pre-construction contours in 

waters of the United States do not 

compromise vegetation management 

because most vegetation management is 

conducted above the soil surface. In 

situations where vegetation 

management involves the removal of 

plants and their roots, the project 

proponent can regrade the soil surface 

so that there are no changes in preconstruction contours of waters of the 

United States, including jurisdictional 

wetlands. The Corps acknowledges that 

vegetation management is important for 

safe, reliable operation of electric utility 

lines and telecommunications lines, and 

for managing fire risks. However, the 

Corps does not have the legal authority 

to require vegetation management 

activities to manage fire risks. State and 

local governments may possess that 

authority. 

A few commenters recommended 

removal of the following sentence from 

the preamble to the proposed rule: ‘‘The 

wooden poles used for overhead electric 

transmission lines can be up to 27 

inches in diameter, and these poles are 

usually inserted into the soil surface by 

digging a hole, with some soil 

disturbance in the vicinity of the 

installed pole.’’ These commenters said 

that utility poles are specified based on 

class and height, not diameter. In 

addition, these commenters noted that 

round treated wood utility poles can be 

greater than 27 inches in diameter. 

Lastly, these commenters said that 

treated wood utility poles can be 

provided not only as ‘‘round poles’’, but 

also as ‘‘laminated rectangular poles.’’ 

These commenters recommended 

adding the following sentence to the 

final rule: ‘‘The wooden poles used for 

overhead electric transmission lines can 

be up to 40 inches in diameter or up to 

90 inches on any side for rectangular 

poles.’’ 

The Corps cannot remove sentences 

from documents that have already been 

published in the Federal Register, and 

it sees no need to remove this text 

because it only served as background 

information for the proposed rule, 

including the proposal to issue three 

separate NWPs for different sectors of 

utility line activities. The Corps 

acknowledges that this sentence is 

incomplete, and appreciates the 

additional clarification provided by the 

commenter. 

A few commenters noted that, 

although the preamble recognizes the 

wide array of structure types for utility 

lines, the language of proposed NWP C 

appears to assume a limited design 

configuration for structures to support 

aerial transmission lines. These 

commenters said that the requirement 

for separate footings for each tower leg 

incorrectly suggests that such lines only 

utilize lattice tower type structures with 

multiple legs per structure, which is not 

the case. Therefore, these commenters 

recommended that the Corps eliminate 

this language from the final NWP C to 

accurately reflect the wide array of 

structure types that are used to support 

aerial utility and telecommunication 

lines. One commenter recommended 

revising the text as follows: ‘‘This NWP 

authorizes the construction or 

maintenance of foundations for 

overhead electric utility line or 

telecommunication line structures, 

towers, poles, and anchors in all waters 

of the United States, provided the 

foundations are the minimum size 

necessary.’’ 

The text of NWP C provides 

substantial flexibility in authorizing 

discharges of dredged or fill material 

into waters of the United States 

associated with the installation of 

structures used to support aerial 

transmission lines. The text of the NWP 

acknowledges that single poles may be 

used for overhead transmission lines, 

and there is flexibility for authorizing 

discharges of dredged or fill material 

into waters of the United States for 

footings that support other types of 

structures used for aerial transmission 

lines, including lattice tower types 

structures. For foundations for overhead 

electric utility line or 

telecommunication line towers, poles, 

and anchors, the Corps is retaining the 

text of the NWP as proposed. 

One commenter supports the Corps’ 

proposal to use the 1⁄2-acre limit in 

proposed NWP C. One commenter 

stated that it remains unclear when 

associated facilities are authorized by 

multiple NWPs, whether the 1⁄2-acre 

limit will be applied to multiple NWPs 

or if only one NWP will be selected to 

authorize the associated facilities. 

The Corps has retained the 1⁄2-acre 

limit for losses of waters of the United 

States for each single and complete 

project authorized by NWP C. General 

condition 28 addresses the use of 

multiple NWPs to authorize a single and 

complete project and that general 

condition applies to utility line 

crossings that may involve different 

types of utility lines authorized by 

NWPs 12, C, and/or D, where the 

acreage limit for each single and 

complete project continues to be 1⁄2- 

acre. 

One commenter objected to the 

inclusion of substation facilities in this 

NWP, because substations can usually 

be constructed in uplands. One 

commenter said the proposed text for 

foundations for overhead electric utility 

line or telecommunications lines 

towers, poles, and anchors should be 

revised. 

The Corps is retaining substations in 

this NWP because there are likely 

circumstances where it is not feasible or 

practicable to site a substation in 

uplands. This NWP provides DA 

authorization for discharges of dredged 

or fill material into waters of the United 

States for the construction, 

maintenance, or expansion of electric 

utility line and telecommunications 

substations as long as the loss of waters 

of the United States does not exceed 1⁄2- 

acre. 

One commenter stated that the Corps 

should end the practice of considering 

timber and other mats used for 

temporary access and construction as 

resulting in discharges of dredged or fill 

material into waters of the United States 

and as part of the filled area for the PCN 

thresholds. Some Corps districts count 

matting toward the PCN threshold for 

permittees, requiring permittees to 

submit a PCN if the discharge will result 

in the loss of greater than 1⁄10-acre of 

waters of the United States. 

The Corps believes that the decision 

on whether timber mats or mats 

constructed of other materials that are 

used during construction, maintenance, 

repair, or removal of electric utility lines 

and telecommunication lines result in 

discharges of dredged or fill material 

2814 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

into waters of the United States and 

thus require DA authorization is more 

appropriately made by district engineers 

on a case-by-case basis. Such decisions 

should be made by district engineers 

after considering the definitions of 

‘‘discharge of dredged material’’ and 

‘‘discharge of fill material’’ at 33 CFR 

323.2(d) and (f). The use of temporary 

matting does not constitute a ‘‘loss of 

waters of the United States’’ or count 

towards the 1⁄10-acre PCN threshold for 

losses of waters of the United States as 

long as the timber matting is removed 

after completion of the authorized work 

and the affected area restored to preconstruction elevations. 

A few commenters stated that 

applicants should have to produce 

containment and clean up contingency 

plans as a best management practice to 

address inadvertent returns of drilling 

fluids during horizontal directional 

drilling activities. The Corps does not 

have the authority to require project 

proponents to develop containment and 

contingency plans for horizontal 

directional drilling activities that do not 

involve discharges of dredged or fill 

material into waters of the United State 

or cross navigable waters and require 

section 10 authorization. The NWP 

authorizes regulated activities that may 

be necessary to remediate inadvertent 

returns of drilling fluids to provide 

timely responses to such events and 

help reduce potential adverse effects to 

the aquatic environment that may occur 

as a result of these inadvertent returns. 

Several commenters supported the 

two PCN thresholds for proposed NWP 

C. They stated that limiting the PCN 

requirements for this NWP to these two 

PCN thresholds will reduce burdens on 

the regulated public, simplify NWP C, 

eliminate redundancy, and focus the 

PCN requirements on activities that 

have a substantive potential to result in 

more than minimal adverse 

environmental effects. One commenter 

stated that the proposed PCN 

requirements add an administrative 

burden to the Corps and reduce 

certainty for projects. Many commenters 

opposed having only two PCN 

thresholds and requested that NWP C 

have the same seven PCN thresholds as 

the 2017 NWP 12. 

In the 2020 Proposal the Corps 

proposed two PCN thresholds for this 

NWP: (1) For activities that require 

section 10 authorization, and (2) for 

discharges that result in the loss of 

greater than 1⁄10-acre of waters of the 

United States. In response to the 

proposed rule, the Corps received 

comments recommending the addition 

of other PCN thresholds that were 

removed from NWP. For summaries of 

the comments on the five PCN 

thresholds that were in the 2017 NWP 

12 but removed from the 2021 NWP 12, 

and the Corps’ responses to those 

comments, interested persons should 

read the section in this final rule on the 

reissuance of NWP 12. 

One commenter supported the 

proposal to require PCNs for losses of 

greater than 1⁄10-acre of waters of the 

United States. One commenter 

recommended requiring PCNs for 

mechanized land clearing of forested 

wetlands in the electric utility line 

right-of-way where greater than 1⁄10-acre 

of forested wetland is subjected to 

mechanized land clearing, instead of 

requiring PCNs for any amount of 

mechanized land clearing in forested 

wetlands. One commenter asked why 

activities that result in changes in preconstruction contours, but do not result 

in permanent losses of waters of the 

United States cannot be permitted by 

NWP C while activities that do not 

result in a change to pre-construction 

contours, but result in up to 1⁄10-acre of 

permanent loss of waters of the United 

States can be permitted by this NWP. 

The Corps did not propose to require 

PCNs for discharges of dredged or fill 

material into waters of the United States 

associated with mechanized land 

clearing of forested wetlands in the 

utility line right of way. If, for a 

proposed electric utility line or 

telecommunications line, the applicant 

proposes to conduct mechanized land 

clearing of forested wetlands in the 

right-of-way for the electric utility line 

or telecommunications line, a PCN is 

required if the project proponent will be 

unable to restore the disturbed wetlands 

to pre-construction elevations and the 

activity involves a discharge of dredged 

or fill material that results in the loss of 

greater than 1⁄10-acre of waters of the 

United States. Nationwide permit C 

authorizes discharges of dredged or fill 

material into waters of the United States 

that result in permanent losses of waters 

the United States, as long as that loss 

does not exceed 1⁄2-acre for each single 

and complete project. 

One commenter opposed the 

requirement to submit a PCN for 

activities that require authorization 

under Section 10 of the Rivers and 

Harbors Act, regardless of the amount of 

loss. The Corps has retained this PCN 

threshold so that district engineers have 

the opportunity to review these 

activities and ensure that the authorized 

activities cause no more than minimal 

adverse effects to navigation. 

Several commenters objected to 

allowing multiple segments of the same 

pipeline to qualify for NWP 

authorization, stating it is a violation of 

Section 404(e) of the Clean Water Act, 

the National Environmental Policy Act, 

the Endangered Species Act, and other 

legal requirements for rigorous and 

transparent environmental reviews and 

safeguards. A few commenters noted 

that while electric and 

telecommunication lines do not pose 

the same risks of spills and leaks as oil 

and gas pipelines, they still allow for 

greater than minimal impacts by 

authorizing large electric lines and 

telecommunications lines under the 

guise of ‘‘single and complete projects.’’ 

Considering separate and distant 

crossings of waters of the United States 

to be linear projects that can be 

authorized by separate NWPs is a longstanding practice that has been codified 

in the Corps regulations at 33 CFR 

330.2(i) since 1991 (see 56 FR 59110). 

This practice does not violate Section 

404(e) of the Clean Water Act, NEPA, or 

the ESA. The Corps complies with 

NEPA when it issues the national 

decision document for the issuance of 

an NWP, because that decision 

document includes an environmental 

assessment. Activities authorized by 

NWP C and other NWPs must comply 

with general condition 18, endangered 

species. The Corps acknowledges that 

some spills or leaks may occur from 

equipment associated with electric 

utility lines and telecommunications 

lines, including equipment at 

substations, but the Corps does not have 

the authority to regulate such spills or 

leaks. 

A few commenters stated that is that 

it is unclear how the Corps will evaluate 

what constitutes a ‘‘project’’ under these 

NWPs for the purposes of determining 

whether a project exceeds the 1⁄2-acre 

limit or results in a loss of more than 

1⁄10-acre in order to trigger the 

requirement for an individual permit. A 

few commenters requested additional 

details regarding what measures will be 

used to ensure that projects under these 

NWPs are not improperly divided into 

smaller sections to avoid an individual 

permit requirement. Several 

commenters state that the ‘‘single and 

complete project’’ concept should not 

apply to the installation of new electric 

utility line and telecommunication 

activities. Some commenters said a new 

electric utility line or 

telecommunications line should be 

subject to analysis under NEPA for the 

entire project, including a cumulative 

review of all temporary and permanent 

impacts to waters of the United States 

from the utility line crossings, access 

roads, substations, temporary work 

pads, etc. 

The Corps has long-standing practice 

and experience evaluating single and 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2815 

complete projects when applying the 1⁄2- 

acre limit and the 1⁄10-acre PCN 

threshold for losses of waters of the 

United States. District engineers have 

the discretion to determine which 

regulated activities constitute ‘‘single 

and complete linear projects’’ and 

‘‘single and complete non-linear 

projects’’ in accordance with the Corps’ 

regulations and the definitions in 

Section F of these NWPs. When an NWP 

C activity requires a PCN, paragraph 

(b)(4)(i) of general condition 32 requires 

the applicant to include in the PCN and 

any other NWP(s), regional general 

permit(s), or individual permit(s) used 

or intended to be used to authorize any 

part of the proposed project or any 

related activity, including other separate 

and distant crossings for linear projects 

that require Department of the Army 

authorization but do not require preconstruction notification. Furthermore, 

paragraph (b)(4)(ii) of general condition 

32 requires the applicant to include in 

the PCN the quantity of anticipated 

losses of wetlands, other special aquatic 

sites, and other waters for each single 

and complete crossing of those 

wetlands, other special aquatic sites, 

and other waters (including those single 

and complete crossings authorized by 

NWPs but do not require PCNs). The 

district engineer uses this information to 

evaluate the cumulative adverse 

environmental effects of the proposed 

linear project. Activities authorized by 

NWP do not require additional NEPA 

compliance, because the Corps satisfies 

the requirements of NEPA when it 

issues the national decision documents 

for the NWPs. 

One commenter stated that a PCN 

should be required for any new or 

expanded electric utility line project, 

and there needs to be an overall limit in 

acreage of waters of the United States 

lost as a result of activities authorized 

by this NWP. A few commenters said 

that proposed NWP C should include 

the 250-mile PCN threshold proposed 

for NWP 12. These commenters asserted 

that not adding the 250-mile PCN 

threshold allows for very large projects 

to be built without a PCN and, therefore, 

bypass other federal requirements that 

are triggered by the section 404 process 

such as the requirements of Section 7 of 

the Endangered Species Act and Section 

106 of the National Historic 

Preservation Act. One commenter asked 

whether temporary impacts and impacts 

that involve conversion from one 

wetland type to another (e.g., forested 

wetland to herbaceous) are counted as 

part of the 1⁄10-acre PCN notification 

threshold. These commenters 

recommended revising the definition of 

‘‘loss of waters of the United States’’ to 

include permanent conversion of 

wetland types. 

The Corps does not agree that PCNs 

should be required for any expansion of 

electric utility line projects. The 

information required by paragraphs 

(b)(4)(i) and (ii) of general condition 32 

provides the Corps with information 

similar to the 250-mile PCN threshold 

that was added to NWP 12, but the 

Corps does not believe that the 250-mile 

PCN threshold is necessary for NWP C 

because it authorizes projects with 

typically smaller footprints of 

discharges of dredged or fill material. 

Activities authorized by NWP C must 

comply with general condition 18, 

endangered species, and general 

condition 20, historic properties. 

Temporary impacts are not considered a 

‘‘loss of waters of the United States.’’ A 

permanent conversion of wetland type 

is generally not considered a ‘‘loss of 

waters of the United States’’ because the 

affected area is still a wetland, and 

vegetation management activities such 

as cutting and mowing vegetation or 

using herbicides are not regulated by the 

Corps under its permitting authorities. 

One commenter stated that Corps 

districts should maintain consistency 

with the number of thresholds that 

trigger the need for a PCNs expressed in 

the proposed rule. This commenter 

noted that some Corps districts have 

already proposed regional conditions 

that will undercut the changes in the 

proposed rule. This commenter said that 

differences in PCN thresholds across 

Corps districts could complicate NWP C 

by increasing confusion and 

inefficiencies. 

Division engineers have the authority 

to approve regional conditions for this 

NWP based on the characteristics and 

other factors regarding the ecosystems 

in their respective regions, including 

regional conditions that add PCN 

thresholds. Division engineers can add 

regional conditions to replace PCN 

thresholds that were removed from an 

NWP, if the division engineer 

determines that PCN threshold is 

necessary to ensure that the activity has 

no more than minimal or cumulative 

adverse environmental effects. Regional 

conditions are an important mechanism 

for tailoring the NWP program to 

address specific resource concerns in a 

particular geographic area. 

Several commenters opposed 

including Note 2 in NWP C. These 

commenters said that Note 2 is 

inconsistent with the requirements of 

Section 404(e) of the Clean Water Act 

and that it would allow activities that 

have more than minimal adverse 

environmental effects to proceed. One 

commenter said that proposed Note 2 

would explicitly allow the cobbling 

together of multiple NWPs to authorize 

high impact pipelines and associated 

infrastructure that have greater potential 

for harmful spills, leaks, and the 

discharges that accompany them. As 

discussed above in response to 

comments on the Corps’ definition of 

‘‘single and complete project’’ at 33 CFR 

330.2(i), Note 2 is consist with that 

regulation and this long-standing 

practice. 

One commenter recommended 

clarifying and rephrasing the following 

sentence found in Note 3: ‘‘Aerial 

electric utility lines or 

telecommunication lines crossing 

navigable waters of the United States 

(which are defined at 33 CFR part 329) 

must comply with the applicable 

minimum clearances specified in 33 

CFR 322.5(i). The Corps believes that no 

additional clarification is necessary for 

Note 3 because it only points to a 

specific provision of the Corps’ 

regulations to serve as a reminder to 

project proponents that want to 

construct electric utility lines or 

telecommunications lines over 

navigable waters of the United States. 

A few commenters recommended 

including the term ‘‘and other 

temporary structures’’ in the text of Note 

4. These commenters suggested 

changing Note 4 to state that access 

roads and other temporary structures 

such as work pads, temporary utility 

poles, and pulling and tension pads, 

used for both construction and 

maintenance may be authorized, 

provided they meet the terms and 

conditions of this NWP. Note 4 

specifically addresses access roads, and 

the Corps believes it would be 

inappropriate to address other 

temporary structures in this note. 

Temporary structures are addressed in a 

separate paragraph in the text of NWP 

C. 

A few commenters recommended that 

if the Corps includes specific best 

management practices (BMPs) in the 

final NWP C, it should indicate that the 

BMPs should be implemented ‘‘where 

appropriate and practical’’ and 

recognize that implementation of certain 

BMPs may not be required in all 

circumstances. These commenters noted 

that there are a wide range of 

minimization, avoidance, and 

management measures deployed to 

reduce impacts to aquatic environments, 

some are unique to the electric and 

telecommunication utility lines. 

However, it would be difficult to 

include many of these BMPs as national 

requirements for all uses of NWP C 

because their implementation, while 

2816 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

frequent, is site-specific and may not be 

feasible or useful for minimizing 

impacts in all scenarios. A few 

commenters stated that the Corps 

should not adopt additional national 

BMPs or other restrictions, and said that 

such practices should be addressed at 

the regional level and tailored to local 

environments, which will allow for 

greater flexibility. A few commenters 

said that adding additional BMPs or 

standards to this NWP would result in 

redundant requirements to manage on 

these projects without providing 

additional benefits. 

The Corps agrees that BMPs should be 

implemented where appropriate and 

practical, and that it would be more 

appropriate and efficient to add BMPs to 

this NWP either through regional 

conditions added to the NWP by 

division engineers or activity-specific 

conditions added to the NWP by district 

engineers. During its review of the 

suggested BMPs, the Corps determined 

that many of these BMPs that are 

appropriate to apply nationwide would 

not be appropriate for the NWP at a 

national level, but they may be 

appropriate on a region level. The 

proposed text of NWP includes some 

BMPs (e.g., requiring no changes in 

preconstruction contours of waters of 

the United States, requiring the top 6 to 

12 inches of the trench in wetlands to 

normally be backfilled with topsoil from 

the trench, removal of temporary fills 

upon completion of the work). 

Many commenters said that the 

placement of temporary matting in 

jurisdictional wetlands should continue 

to be a BMP for proposed NWP C 

activities to minimize adverse 

environmental effects. Several 

commenters recommend requiring the 

use of low-ground pressure equipment, 

such as heavy equipment that has been 

specially designed to spread the weight 

of the equipment over a larger area, 

which helps avoid permanent impacts 

by reducing compaction of wetland 

soils. One commenter said that use of 

wattles (i.e., erosion and sediment 

control devices used to minimize 

erosion on construction sites) is a 

general accepted practice to reduce 

water flow velocities and prevent 

sediment from flowing into 

jurisdictional waters. The Corps 

believes these BMPs are more 

appropriately applied on a case-by-case 

or regional basis, in consideration of the 

characteristics of the affected 

ecosystems, instead of a national basis. 

One commenter stated that the Corps 

should continue to clearly outline 

performance criteria within 

jurisdictional areas because it provides 

the flexibility needed to facilitate the 

improvement and development of 

construction practices that could better 

protect aquatic resources. One 

commenter recommended adding a 

requirement that directional drilling 

under waters of the United States 

should be a national standard. One 

commenter suggested the addition of a 

BMP to require district engineers to 

distribute relevant PCNs to state 

agencies involved in the regulatory 

oversight or environmental review of 

projects authorized by the new NWP C. 

With this NWP, the Corps outlines 

certain performance criteria (e.g., 

removal of temporary fills, uses of 

temporary mats) within jurisdictional 

waters. The Corps believes the 

recommended BMPs are applied more 

appropriately and effectively on a caseby-case or regional basis instead of a 

national basis. 

One commenter suggested a BMP 

where the project proponent tries to cut 

only vegetation that exceeds a height of 

12 feet and allows all low-growing trees 

and shrubs to remain in place. This 

commenter said that a benefit of this 

BMP is that it allows roots to remain in 

place providing soil stabilization in and 

around jurisdictional waters. One 

commenter noted that non-mechanized 

clearing is preferred consistent with the 

Corps’ regulations at 33 CFR 323.2(d) 

along with hand clearing, low ground 

pressure equipment and mats, to 

minimize and avoid additional impacts 

to the jurisdictional water or wetland 

beyond conversion are significantly 

minimized or avoided. The Corps 

believes the recommended BMPs are 

applied more appropriately and 

effectively on a case-by-case or regional 

basis instead of a national basis. 

One commenter said that vibratory 

plowing is preferred over trenching 

methods for burying both distribution 

and fiber optic lines because vibratory 

plowing under most conditions does not 

create incidental addition of material. 

One commenter recommended requiring 

that material resulting from trench 

excavation may be temporarily side cast 

into waters of the United States for very 

short periods of time well within the 

limitation of three months, and is not 

placed in such a manner that it is 

dispersed by currents or other forces. In 

addition, this commenter suggested 

requiring side-cast material to be 

protected so it does not discharge offsite 

or into jurisdictional waters during 

rainfall events. The Corps believes the 

recommended BMPs are applied more 

appropriately and effectively on a caseby-case or regional basis instead of a 

national basis. 

One commenter remarked that while 

burying utilities is an important climate 

adaptation strategy to address wildfire 

impacts, such activities should be 

undertaken in an ecologically 

responsible fashion, and recommended 

prohibiting NWP C activities within or 

under coastal zone waters and wetlands. 

The Corps does not agree that NWP C 

activities should be prohibited in 

coastal zone waters and wetlands. 

A few commenters provided the 

following list of various practices its 

members implement to help ensure that 

electric utility line construction and 

maintenance activities will have no 

more than minimal adverse 

environmental impacts: 

• Avoiding surface waters when 

embedding structures (footings, poles, 

etc.), stockpiling materials, and setting 

up work areas. Locating poles and tower 

foundations outside of surface waters to 

the extent practicable. Where 

practicable, poles or structures are sited 

in uplands so that the infrastructure 

‘‘spans’’ and thereby avoids the aquatic 

environment. 

• When it is not possible to span an 

aquatic environment, poles or structures 

are installed in a manner to maintain 

conductor clearance consistent with 

North American Electric Reliability 

Corporation (‘‘NERC’’) and other 

guidelines to ensure safe and reliable 

operation. 

• Installing mats before placing or 

driving equipment over wetlands or 

streams. 

• Constructing roads with pervious 

materials and limiting width and 

elevation, so long as access is safe. 

• Relying on low water crossings and 

appropriately sized culverts. 

• Designing site plans to address the 

prevention, containment, and cleanup 

of sediment or other materials caused by 

the inadvertent returns of drilling fluids 

when installing electric utility lines 

under streams or other waters via 

directional drilling. 

• Locating stockpile and work areas 

outside of surface waters. 

• Performing frequent inspections of 

environmental and safety measures and 

construction activities. 

• Marking waters of the United States 

near work areas with flagging or 

perimeter fencing 

• Deploying mats prior to driving 

over or placing heavy equipment on 

wetlands. 

• Installing stormwater BMPs to 

prevent erosion of hillsides adjacent to 

construction areas. 

• Where practicable, trench material 

is side casted onto uplands or onto filter 

cloth, mats, or some other semipermeable surface in vegetated 

wetlands. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2817 

• Site plans are designed to address 

the prevention, containment, and 

cleanup of sediment or other materials 

caused by the inadvertent returns of 

drilling fluids when installing electric 

utility lines under streams or other 

waters via directional drilling. In the 

event of an inadvertent return of drilling 

fluids, the agency is notified, and the 

remediation plan is implemented. 

• Where permanent access is not 

required, avoidance measures are 

deployed to minimize impacts to 

jurisdictional waters to the maximum 

extent possible. 

• Where permanent roads are 

required, they are typically limited in 

width and elevation to the minimum 

necessary for safe access and 

constructed with pervious materials. 

• Stockpiles and work areas are 

generally established outside of surface 

waters. 

• Timber mats are typically installed 

prior to placing or driving equipment 

over wetlands or streams. 

• Frequent inspections of 

environmental and safety measures and 

construction activities are performed. 

Monitoring during and after 

construction to avoid unauthorized 

discharges to surface waters. 

• Construction personnel, 

contractors, and personnel who operate 

and maintain the electric utility and 

telecommunication lines are trained to 

understand and comply with permit 

requirements and conditions. 

Several commenters suggested the 

following BMPs for proposed NWP C 

based on Avian Powerline Interaction 

Committee documents. Their 

recommended BMPs include: 

• Avian Protection Plan (APP) 

Guidelines. 

• Suggested Practices for Avian 

Protection on Power Lines. 

• Reducing Avian Collisions with 

Power Lines: State of the Art in 2012. 

• Region 6 Guidance for Minimizing 

Effects from Power Line Projects Within 

the Whooping Crane Migration Corridor 

(available at https://puc.sd.gov/ 

commission/dockets/electric/2019/el19- 

003/memo.pdf.) 

The Corps believes the recommended 

BMPs are applied more appropriately 

and effectively on a case-by-case or 

regional basis instead of a national 

basis. The Corps has been administering 

NWP 12 since it was first issued in 1977 

without extensive BMPs at the national 

level and has found that the current 

approach with the BMPs that are 

already in the text of the utility line 

NWPs (i.e., NWPs 12, 57, and 58) is 

effective. 

A few commenters stated that the 

proposed NWP C will allow for 

increased impacts to rivers and 

wetlands. One commenter said that 

mechanized land clearing in forested 

and scrub-shrub wetlands for utility line 

installation should not be authorized 

under NWP C and that individual 

permits should be required for those 

activities. One commenter said that 

individual permits should be used to 

authorize the entire electric utility line 

project when one crossing does not meet 

the limits for NWP C. One commenters 

states that it is not clear how temporal 

and cumulative impacts will be 

considered when evaluating facilities 

proposed to be authorized by NWP C or 

by multiple NWPs. A few commenters 

recommend that the Corps adopt a 

policy of early consultation with Indian 

tribes and other actors on these types of 

projects, above the timeline required by 

the NHPA section 106 process. One 

commenter recommended that the 

Corps require prior consent on projects 

impacting tribes. 

The proposed NWP C will not result 

in increased impacts to rivers and 

wetlands because it has the same limits 

as the NWP 12 that was issued in 2017 

and in several prior reissuances of the 

NWPs. The activities authorized by this 

NWP must comply with 33 CFR 

330.6(d), which addresses the use of 

NWPs with individual permits. During 

the PCN review process, district 

engineers evaluate the individual and 

cumulative effects of the activities 

authorized by an NWP (see paragraph 2 

of Section D, District Engineer’s 

Decision). For Corps districts consult 

with tribes when necessary for activities 

authorized by this NWP and other 

NWPs. Issuance of an NWP verification 

by a district engineer does not require 

prior consent from tribes. 

Several commenters expressed 

concern about the impacts that electric 

utility lines may have on migratory 

avian populations from collisions with 

power lines. These commenters said 

that the Corps needs to analyze the 

potential harm to bird populations from 

its permitting of utility lines pursuant to 

this proposed NWP. These commenters 

said that national programmatic ESA 

section 7 consultation should be 

initiated for the issuance of this NWP, 

to allow the Services to work with the 

Corps to establish national BMPs. 

Another commenter stated that the 

Corps should consider voluntarily 

performing ESA Section 7 consultation 

on the issuance of this NWP to provide 

regulatory certainty. 

The national decision document has 

been revised to discuss potential 

impacts of electric utility lines on 

migratory birds. General condition 19 

addresses compliance with the 

Migratory Bird Treaty Act and the Bald 

and Golden Eagle Protection Act. That 

general condition states that the 

permittee is responsible for ensuring 

that the activity authorized by an NWP 

complies with both of these acts, and 

that the permittee is responsible for 

contacting the appropriate office of the 

U.S. FWS to determine whether any 

incidental take permits are necessary 

and available under the Migratory Bird 

Treaty Act or Bald and Golden Eagle 

Protection Act. Compliance with the 

ESA for this rulemaking is discussed in 

Section III.D of this final rule. 

One commenter emphasized that 

safety must remain paramount when 

constructing, maintaining, repairing, 

and replacing above-ground and belowground electrical utility lines. The 

commenter suggested that the Corps 

reference safety standards as a means of 

ensuring that electric utility activities 

are conducted safely. One commenter 

said that the proposal also describes the 

two methods by which underground 

electric transmission cables are 

installed: Trenching and backfilling or 

horizontal directional drilling. This 

commenter remarked that members may 

also utilize conventional boring to 

install electric utility lines, and asked 

that the Corps acknowledge that 

conventional boring is another method 

used for installation of underground 

electric transmission cables. 

The Corps does not have the authority 

to require and enforce safety standards 

that apply to the construction, 

maintenance, repair, and replacement of 

above-ground and below-ground 

electrical utility lines. Safety standards 

and requirements may be imposed by 

other federal agencies, or state and local 

government agencies. This NWP 

authorizes activities that may involve 

directional boring, as long as those 

activities involve discharges of dredged 

or fill material into waters of the United 

States or cross navigable waters of the 

United States. 

Proposed new NWP C is issued as 

NWP 57, with the modifications 

discussed above. 

(16) NWP 58. Utility Line Activities for 

Water and Other Substances 

The Corps proposed this new NWP as 

NWP D, to discharges of dredged or fill 

material into waters of the United 

States, and structures and work in 

navigable waters of the United States, 

for utility line activities for water and 

other substances, such as potable water, 

sewage, stormwater, and wastewater. 

Several commenters stated that they 

support the issuance of new NWP D for 

water, wastewater, and stormwater 

utility lines because of the national legal 

2818 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

uncertainty of oil and gas pipeline 

projects. Many commenters said they 

support the issuance of NWP D because 

it streamlines the permitting process, 

clarifies the PCN requirements, 

separates activities based on the utility 

types, and ensures the activities will 

cause no more than minimal adverse 

environmental effects. Several 

commenters stated they were opposed 

to the issuance of NWP D and 

recommend withdrawing NWP D 

because it authorizes activities that 

cause significant adverse impacts, and 

these activities should require 

individual permits. These commenters 

stated, that at a minimum, additional 

PCN requirements should be added to 

the proposed NWP. 

The activities authorized by NWP D 

will generally result in no more than 

minimal individual and cumulative 

adverse environmental impacts, and 

certain activities require preconstruction notification to the district 

engineer. District engineers will review 

PCNs for proposed NWP D activities, 

and may add permit conditions, 

including mitigation requirements, to 

the NWP authorization to help ensure 

that the authorized activities cause no 

more than minimal adverse 

environmental effects. District engineers 

can also exercise discretionary authority 

and suspend or revoke the NWP 

authorization for proposed activities 

that will result in more than minimal 

adverse environmental effects. The 

Corps believes that the two PCN 

thresholds in proposed NWP D will 

provide district engineers with the 

opportunity to review utility line 

activities for water and other substances 

that have the potential to cause more 

than minimal adverse environmental 

effects. 

Several commenters expressed 

opposition to allowing multiple 

segments as ‘‘single and complete 

projects’’ of the same pipeline qualify 

for NWP authorization because it 

violates the Clean Water Act’s minimal 

impact limitation, the National 

Environmental Policy Act, the 

Endangered Species Act, and other legal 

requirements for rigorous and 

transparent environmental reviews and 

safeguards. In addition, several of these 

commenters stated the authorizing 

multiple segments as single and 

complete projects does not capture 

cumulative effects. 

The use of NWPs to authorize 

separate and distant crossings of waters 

of the United States for utility lines and 

roads as single and complete has been 

in the Corps’ NWP regulations at 33 CFR 

330.2(i) since 1991. The National 

Environmental Policy Act is a 

procedural statute that does not prohibit 

any specific regulatory approaches or 

mandate specific outcomes. Activities 

authorized by NWP D must comply with 

general condition 18, endangered 

species. The requirements of paragraph 

(b)(4) of general 32 help ensure that 

district engineers have information 

regarding the crossings of waters of the 

United States that require PCNs or do 

not require PCNs, so that the cumulative 

adverse environmental effects can be 

assessed during the review process. 

Several commenters stated opposition 

to the removal of the five PCN 

requirements from the 2017 NWP 12 

because they believe the Corps will no 

longer receive notice of activities that 

cause more than minimal adverse 

effects, nor will other federal and state 

natural resource agencies be able to 

review and provide comments. Many 

commenters opposed the removal of the 

non-PCN requirements for right-of-way 

mechanized land clearing through 

forested wetlands because this activity 

causes fragmentation and a loss/ 

conversion of wetland type and 

associated functions. The commenters 

requested addition of a requirement for 

the submittal of a PCN for land clearing 

associated with utility line rights-of-way 

within wetlands so that the Corps and 

interested stakeholders can ensure 

impacts are appropriately avoided and 

mitigated. A few commenters stated that 

the 500 linear foot PCN threshold from 

the 2017 NWP 12 should be added to 

NWP D. One commenter said that the 

PCN requirement for temporary access 

roads should be retained. One 

commenter stated that a PCN should be 

required when the proposed activities 

would run parallel with a stream bed. 

The removal of the five PCN 

thresholds from NWP 12 are discussed 

in the preamble discussion of NWP 12 

and the same reasoning applies to the 

removal of these PCNs from NWP 58. 

That preamble discussion includes 

responses to comments, and that 

discussion will not be repeated in this 

section of the preamble. The Corps 

declines to add the suggested PCN 

thresholds because this NWP requires 

restoration of temporary fills to preconstruction elevations. If utility line 

activities associated with the suggested 

PCN thresholds result in a permanent 

impact that causes the loss of greater 

than 1⁄10-acre of waters of the United 

States, then PCNs are required. 

A few commenters said there needs to 

be an overall acreage limit on 

authorized impacts for this NWP, 

including a maximum acreage for nonPCN forest clearing activities, and a 

maximum length of impervious surface 

roads before a PCN is required. One 

commenter stated that the Corps needs 

to provide sound, scientific evidence 

that the removal or omission of any of 

the PCN thresholds from the 2017 NWP 

12 would not harm river, stream, or 

wetland hydrologic functions. 

The activities authorized by this NWP 

are subject to a 1⁄2-acre limit for each 

single and complete project. There was 

no PCN requirement for temporary 

access roads in the 2017 NWP 12 and 

the Corps continues to believe that it is 

not necessary to ensure no more than a 

minimal individual or cumulative 

adverse environmental effects. Preconstruction notification thresholds are 

established for proposed activities 

requiring DA authorization that have the 

potential to cause more than minimal 

adverse environmental effects. Preconstruction notifications are informed 

by science and the Corps experience in 

administering the NWP program. In this 

instance, the Corps has determined it 

can remove the respective PCN 

requirements without risking more than 

a minimal individual or cumulative 

adverse environmental effects. 

Some commenters said that the 

reduction of the PCN thresholds will 

simplify NWP D and would not cause a 

negative impact on the environment. 

One commenter asserted that permanent 

access roads should be authorized under 

NWP 14, not NWP D. One commenter 

recommended adding a requirement for 

horizontal directional drilling under 

waters of the United States, as a national 

standard under NWP D. One commenter 

recommended adding a provision to 

NWP D requiring containment and clean 

up contingency plans. 

The Corps declines to add a 

requirement for the use of horizontal 

directional drilling because that 

technique is not always practical or 

feasible for utility lines that convey 

water and other substances. The use of 

horizontal directional drilling is more 

appropriately determined on a case-bycase basis after considering the 

characteristics of the proposed utility 

line activity, including site 

characteristics. The Corps does not have 

the authority to require containment 

and cleanup contingency plans for the 

construction, expansion, maintenance, 

or repair of utility line activities for 

water and other substances. 

One commenter stated that the Corps 

should define a ‘‘stand-alone project’’ as 

a utility line project that includes all 

crossing within a major watershed as 

evaluated together as single and 

complete, since the cumulative impacts 

are to one system. The commenter said 

that an alternative approach would be to 

require a cumulative analysis for all 

proposed NWP D activities. Several 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2819 

commenters requested clarification of 

the status of ongoing, non-oil and gas 

utility projects verified under the 2017 

NWP 12, specifically whether they will 

continue to be authorized under the 

2017 NWP 12 until the March 18, 2022 

expiration date, or if they will need to 

be reverified. 

The Corps declines to add a definition 

of ‘‘stand-alone project’’ to this NWP. 

When reviewing PCNs for proposed 

NWP activities, district engineers 

evaluate the crossings of waters of the 

United States that require PCNs and the 

information provided on other crossings 

in accordance with paragraph (b)(4) of 

general condition 32. They will 

determine whether the proposed utility 

line for water and other substances will 

result in no more than minimal 

individual and cumulative adverse 

environmental effects. The 

grandfathering provisions for these 

NWPs, including the transition from 

2017 NWP 12 to the 2021 NWP 12 and 

new NWPs 57 and 58, is discussed in 

Section I.D. of this final rule. 

A few commenters requested that the 

Corps broaden the definition of the term 

‘‘utility line’’ so that it includes other 

types of man-made conveyances, such 

as canals and other linear conveyances 

that are subject to Clean Water Act 

section 404 jurisdiction and can 

transport water. One commenter 

requested the addition of specific 

waterline ancillary facilities including, 

but not limited to pump plants, siphons, 

and tunnels to the text of this NWP. One 

commenter said that the Corps should 

clarify whether this NWP authorizes 

utility line activities that convey 

substances that are unclear as to 

whether they included in the definition 

of ‘‘oil or natural gas pipeline’’ in NWP 

12, such as hydrogen and power-to-gas 

(i.e., hydrogen combined with carbon 

dioxide to create methane, or renewable 

natural gas). One commenter 

recommended further defining the term 

‘‘other substances’’ in this NWP. 

The Corps declines to add canals and 

ditches to the activities authorized by 

this NWP. Canals and ditches can be 

authorized by other NWPs, if the 

construction of those ditches involves 

discharges of dredged or fill material 

into waters of the United States or 

structures or work under Section 10 of 

the Rivers and Harbors Act of 1899. 

Substations for utility lines for water 

and other substances can include pump 

plants and siphons. Tunnels may be 

authorized if they a considered utility 

lines. Utility lines constructed to convey 

hydrogen or carbon dioxide can 

authorized by NWP D, but utility line 

activities constructed to convey 

renewable natural gas should be 

authorized by NWP 12. In general, 

‘‘other substances’’ includes substances 

not conveyed by utility lines authorized 

by NWPs 12 and 57. The Corps has 

added ‘‘products derived from oil or 

natural gas’’ to be consistent with the 

definition of ‘‘oil or natural gas 

pipeline’’ in NWP 12, and to clarify that 

regulated activities associated with 

pipelines that carry substances derived 

from oil or natural gas should be 

authorized by NWP 12, not NWP D. 

One commenter said that Note 4 

should refer to the General Bridge Act 

of 1946 instead of Section 9 of the 

Rivers and Harbors Act of 1899. The 

Corps has made this change to Note 4. 

One commenter requested 

clarification on how temporal and 

cumulative impacts will be considered 

when evaluating activities authorized by 

NWP D. This commenter recommended 

conducting a separate analysis for 

temporal and cumulative impacts on 

streams, wetlands, and other waters. A 

few commenters recommended 

changing the provision condition that 

states ‘‘there must be no change in preconstruction contours of waters of the 

United States’’ to ‘‘there must be no 

change in pre-construction contours 

which results in permanent losses of 

waters of the United States.’’ One 

commenter requested clarification on 

the measures the Corps will take to 

ensure that the activities authorized by 

NWP D are not improperly divided into 

smaller sections to avoid an individual 

permit. 

Temporal and cumulative impacts 

will be evaluated using the 10 criteria 

identified in paragraph 2 of Section D, 

District Engineer’s Decision. The Corps 

declines to change the text regarding the 

requirement for no changes in preconstruction contours, because that has 

been a BMP that has helped ensure that 

most utility line activities result in 

temporary impacts. The Corps applies 

the definitions of ‘‘single and complete 

linear project’’ to NWP D activities and 

to other NWPs that authorize utility 

lines to determine which activities can 

be authorized by an NWP and which 

activities require individual permits. 

The Corps also implements 33 CFR 

330.6(d), which addresses the use of 

individual permits with NWPs. 

Several commenters stated that BMPs 

should be site-specific and imposed as 

special conditions, if necessary, and not 

standardized in the text of NWP D. One 

commenter said that the inclusion of 

standards and BMPs would likely 

impede the objective of the NWP 

program by causing delays and 

increasing paperwork. This commenter 

asserted that attempting to establish 

national standards could cause 

conflicting requirements between the 

NWP and Clean Water Act Section 401. 

The Corps agrees that most BMPs are 

site-specific and should be identified for 

specific utility line activities. Best 

management practices may also vary by 

region and by aquatic resource type. 

Best management practices that are 

necessary to ensure that activities 

authorized by NWP D have no more 

than minimal adverse environmental 

effects are more appropriately identified 

by district engineers and required 

through activity-specific conditions 

added to the NWP authorization or 

through the section 401 water quality 

certification process. 

One commenter said that the Corps 

should adopt a policy of early 

consultation with the tribes and other 

interested parties for these types of 

projects over and above the NHPA 

section 106 process to avoid litigation, 

and other costly delays. This commenter 

also requested the Corps require consent 

on projects impacting tribes. One 

commenter recommended evaluating 

the direct, indirect, and cumulative 

effects on treaty reserved resources, 

including anadromous salmonids and 

their habitat to fully understand the 

potential extent of resource impacts. 

The Corps consults with tribes when 

necessary to ensure that activities 

authorized by an NWP comply with 

general condition 17, tribal rights. As 

part of this rulemaking, Corps districts 

have consulted and coordinated with 

tribes to identify regional conditions 

and coordination processes to ensure 

protect tribal rights, as well as tribal 

trust resources. Activities authorized by 

NWPs do not require prior consent from 

tribes. 

One commenter said that the Corps 

should end the practice of counting 

temporary impacts associated with 

matting for moving heavy machinery 

over a wetland, as a loss of greater than 

1⁄10-acre, which triggers a requirement to 

submit a PCN. One commenter stated 

the Corps districts should maintain 

consistency with the PCN thresholds 

and should not be allowed to add 

regional conditions to this NWP that 

undercuts the reduction in PCN 

thresholds in this NWP. This 

commenter said that regional conditions 

cause confusion and inefficiencies, 

especially if the linear infrastructure 

crosses into multiple Corps districts. 

The determination regarding whether 

the use of matting during utility line 

activities authorized by NWP D causes 

a loss of waters of the United States that 

may require a PCN is more 

appropriately made by district engineers 

on a case-by-case basis. Division 

engineers can add regional conditions to 

2820 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

this NWP that replace PCN thresholds 

that were removed, if they determine 

those PCN thresholds are necessary to 

ensure that this NWP authorizes only 

those activities that have no more than 

minimal adverse environmental effects. 

Regional conditions are intended to 

address regional differences in aquatic 

resource functions, so there may be 

some inconsistency that must be dealt 

with, especially for utility lines that run 

through multiple states or Corps 

districts. 

One commenter said that water mains 

are known to exceed the non-oil and gas 

pipeline diameters, identified in the 

preamble as 3 to 24 inches, as they may 

be 6 feet or wider. This commenter 

stated the Corps did not provide a 

robust analysis of the lengths of the 

various utility line, nor did they provide 

the total national mileage for these lines, 

as they could be quite long and have 

similar types of impacts as oil or gas 

pipelines. A few commenters 

recommended removing natural gas 

pipelines (i.e. residential lines), 

hydrogen transport lines for clean 

energy solutions, and local, intrastate 

utility lines operated as an independent 

municipally-owned distribution system 

from NWP 12, because they are typically 

similar or smaller in size with respect to 

materials, location, installation 

footprint, and constructed along with 

water and wastewater pipelines. 

The intent of the preamble discussion 

in the 2020 Proposal regarding the 

proposal to issue separate NWPs for oil 

or natural gas pipelines, electric utility 

lines and telecommunications lines, and 

utility lines for water and other 

substances was to illustrate some of the 

differences among those utility line 

sectors. The discussion of pipeline 

diameters has no relevance to the text of 

these NWPs, or to the conditions that 

apply to those NWPs. Utility line 

activities authorized by NWP D can be 

used to convey hydrogen, and for local 

distribution of water, sewage, 

wastewater, and other substances. 

One commenter expressed concerns 

regarding the proposed issuance of NWP 

D to authorize utility line activities that 

carry wastewater. This commenter 

stated that distribution systems for 

wastewater reuse applications should be 

assumed to carry highly toxic and 

potentially hazardous substances that 

would degrade soils and groundwater if 

leaked or spilled. One commenter said 

that allowing activities under NWP D 

within or under coastal zone waters and 

wetlands will impermissibly degrade 

water quality, which is inconsistent 

with Section 404(e) of the Clean Water 

Act. One commenter stated that the 

NWP should be modified to require 

access roads to be built in accordance 

with local or state standards. 

Prior versions of NWP 12 have 

authorized utility line activities that 

carry wastewater, so this is not a new 

issue for the NWP program. General 

condition 14 requires proper 

maintenance of activities authorized by 

NWPs, so utility lines carrying 

wastewater should minimize the 

potential for leaks and spills. The Corps 

does not have the authority to regulate 

leaks or spills from utility lines. Leaks 

and spills are more appropriately 

addressed through federal, state, and 

local laws that are administered by 

other federal agencies, or state or local 

government agencies. This NWP can be 

used to authorize utility line activities 

for water and other substances in coastal 

zones. Local and state governments are 

responsible for ensuring that access 

roads are constructed in accordance 

with their standards. 

Proposed NWP D is issued as NWP 58 

with the modification discussed above. 

H. Responses to Comments on the 

Nationwide Permit General Conditions 

GC 1. Navigation. The Corps did not 

propose any changes to this general 

condition. The Corps did not receive 

any comments on this general 

condition. The general condition is 

adopted as proposed. 

GC 2. Aquatic Life Movements. The 

Corps did not propose any changes to 

this general condition. One commenter 

noted that some project proponents bury 

the bottom portion of larger culverts to 

allow fish passage and create a natural 

bottom for habitat. One commenter 

expressed support for the Corps’ 

retention of the existing definition given 

the wide variability of geomorphic and 

hydrologic settings in which NWP 

activities are conducted. One 

commenter stated that the Corps’ 

preference for bottomless culverts, onebarrel culverts, or bridges should be 

explained. Another commenter said that 

in the absence of special concerns, such 

as endangered species, there should not 

be a preference for bottomless culverts. 

One commenter remarked that the text 

of this general condition is insufficient 

without specific monitoring and 

enforcement protocols to ensure that 

effects of NWP activities on aquatic life 

movements are no more than minimal. 

The Corps acknowledges that burying 

the bottom portion of a larger culvert 

and creating a natural bottom for habitat 

is an acceptable approach for complying 

with this general condition. The Corps 

appreciates the commenter’s support for 

providing flexibility in this general 

condition for addressing variations in 

the geomorphic and hydrologic settings 

in which NWP activities are conducted. 

The preference for bottomless culverts is 

based on the ability of bottomless 

culverts to facilitate the continuity of 

aquatic life movements, including 

during low-flow conditions. The general 

condition does not mandate the use of 

bottomless culverts. Bottomless culverts 

can be beneficial to a wide variety of 

aquatic species, not just endangered or 

threatened species. Bottomless culverts 

can provide connectivity for a wide 

variety of species, including aquatic 

species that provide important 

ecosystem functions and services, and 

aquatic species that have economic and 

recreational value. District engineers 

retain the authority to conduct 

compliance inspections to ensure that 

permittees comply with this general 

condition. In most circumstances, 

compliance monitoring is sufficient to 

determine compliance with this general 

condition, instead of requiring 

monitoring and data collection over a 

period of time. 

The general condition is adopted as 

proposed. 

GC 3. Spawning Areas. The Corps did 

not propose any changes to this general 

condition. One commenter expressed 

support for the Corps’ reissuance of this 

general condition without changes. The 

Corps appreciates the support for the 

reissuance of this general condition. The 

general condition is adopted as 

proposed. 

GC 4. Migratory Bird Breeding Areas. 

The Corps did not propose any changes 

to this general condition. The Corps did 

not receive any comments on this 

general condition. The general 

condition is adopted as proposed. 

GC 5. Shellfish Beds. The Corps did 

not propose any changes to this general 

condition. The Corps did not receive 

any comments on this general 

condition. The general condition is 

adopted as proposed. 

GC 6. Suitable Material. The Corps 

did not propose any changes to this 

general condition. One commenter 

stated that the condition should be 

refined to align with state water quality 

standards, specifically relative to 

nutrients and nutrient loading. 

Concerns about compliance with 

applicable state water quality standards 

or requirements are more appropriately 

addressed through the water quality 

certification requirements for proposed 

discharges of dredged or fill material 

into waters of the United States. The 

general condition is adopted as 

proposed. 

GC 7. Water Supply Intakes. The 

Corps did not propose any changes to 

this general condition. One commenter 

expressed support with reissuance of 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2821 

the GC without change. The Corps 

acknowledges this commenters support 

for the reissuance of this general 

condition. The general condition is 

adopted as proposed. 

GC 8. Adverse Effects from 

Impoundments. The Corps did not 

propose any changes to this general 

condition. The Corps did not receive 

any comments on this general 

condition. The general condition is 

adopted as proposed. 

GC 9. Management of Water Flows. 

The Corps did not propose any changes 

to this general condition. The Corps did 

not receive any comments on this 

general condition. The general 

condition is adopted as proposed. 

GC 10. Fills Within 100-Year 

Floodplains. The Corps did not propose 

any changes to this general condition. 

A few commenters stated that the 

Corps should prohibit the use of NWPs 

and many other activities in 100-year 

floodplains and high-risk hurricane 

evacuation zones because of increasing 

risks of climate change and sea level 

rise. One commenter stated that the 

Corps’ requirement in the condition to 

comply with FEMA-approved state or 

local floodplain management 

requirements is insufficient to ensure 

that authorized activities have no more 

than minimal adverse environmental 

effects and comply with the Clean Water 

Act, the Endangered Species Act, and 

the National Environmental Policy Act. 

One commenter said that ‘‘high impact’’ 

NWPs should be prohibited from use in 

floodplains and that individual permits 

should be required for those activities. 

this commenter also stated that this 

general condition should be revised to 

prohibit the use of certain NWPs to 

authorize discharges of dredged or fill 

material into waters of the United States 

that result in permanent above-grade 

fills in mapped 100-year floodplains or 

floodways, in order to comply with 

Executive Order 11988, Floodplain 

Management. 

The Corps does not have the authority 

to regulate activities in 100-year 

floodplains or high-risk hurricane 

evacuation zones, except for discharges 

of dredged or fill material into waters of 

the United States that may be located 

within those floodplains or evacuation 

zones. The primary responsibility for 

determining zoning and land use 

matters, including development 

activities in 100-year floodplains and 

high-risk hurricane evacuation zones, 

lies with state, local and tribal 

governments (see 33 CFR 320.4(j)(2)). 

This general condition is consistent 

with the item 2 of Section E, Further 

Information, which states that the NWPs 

do not obviate the need to obtain other 

federal, state, or local permits, 

approvals, or authorizations required by 

law. State and local governments are the 

entities that have primary responsibility 

for regulating land uses within 

floodplains and other areas. 

Under the discretionary authority 

provision at 33 CFR 330.1(d) and other 

provisions of the NWP regulations at 33 

CFR part 330, division and district 

engineers can further condition or 

restrict the applicability of an NWP for 

cases where they have concerns for the 

aquatic environment under the Clean 

Water Act section 404(b)(1) Guidelines 

or for any factor of the public interest. 

There are two public interest review 

factors related to floodplains in the 

Corps’ public interest review regulations 

at 33 CFR 320.4(a)(1) that could be used 

as a basis for exercising discretionary 

authority: Floodplain values and flood 

hazards. 

Nationwide permit activities, 

including discharges of dredged or fill 

material into waters of the United States 

within floodplains, comply with the 

Endangered Species Act through the 

requirements of NWP general condition 

18. The National Environmental Policy 

Act is a procedural statute, and does not 

mandate any substantive floodplain 

management requirements. The Corps 

complies with NEPA requirements 

when it prepares the national decision 

documents for the issuance, reissuance, 

or modification of NWPs, and discusses 

potential impacts to flood hazards and 

floodplain values in its public interest 

review evaluation. The proposed NWPs, 

including general condition 10, are 

consistent with E.O. 11988, Floodplain 

Management, with respect to the Corps’ 

authority to regulate specific activities 

that may occur in floodplains (i.e., 

discharges of dredged or fill material 

into waters of the United State). In each 

national decision document for the final 

NWPs, the Corps considered potential 

impacts to floodplain values and flood 

hazards. 

The general condition is adopted as 

proposed. 

GC 11. Equipment. The Corps did not 

propose any changes to this general 

condition. One commenter expressed 

support for reissuance of the general 

condition with no change. The Corps 

appreciates this commenter’s support 

for the reissuance of this general 

condition without change. 

The general condition is adopted as 

proposed. 

GC 12. Soil Erosion and Sediment 

Controls. The Corps did not propose any 

changes to this general condition. One 

commenter stated that the condition 

should be modified to reference specific 

erosion control standards or 

specifications that must be followed, 

particularly for projects that exceed an 

acre of land disturbance. Specific soil 

erosion and sediment control 

requirements vary among state and local 

governments and other entities, and are 

more appropriately determined on a 

case-by-case basis for specific NWP 

activities. Therefore, it would be 

inappropriate to establish national 

standards for erosion control. 

The general condition is adopted as 

proposed. 

GC 13. Removal of Temporary 

Structures and Fills. The Corps 

proposed to modify this general 

condition to apply to temporary 

structures. A few commenters expressed 

support for the addition of temporary 

structures to this general condition. A 

few commenters objected to the 

addition of temporary structures to this 

general condition, stating that their 

removal may cause more harm than 

leaving them in place because 

temporary structures are not all alike. 

One commenter requested a definition 

of ‘‘temporary.’’ In contrast, another 

commenter supported leaving the 

definition of ‘‘temporary’’ to the district 

engineer’s discretion. One commenter 

requested that the Corps add preamble 

language to the final rule that states that 

the removal of structures should occur 

after they have fulfilled their intended 

purpose. This commenter further stated 

that the project proponent should 

determine when the structure has 

fulfilled its intended purpose. 

What constitutes a temporary 

structure should be determined on a 

case-by-case basis. Therefore, the Corps 

declines to define ‘‘temporary’’ for the 

purposes of this general condition. The 

Corps has changed the text of this 

general condition as it relates to 

temporary structures. The general 

condition now states that temporary 

structures must be removed, to the 

maximum extent practicable, after their 

use has been discontinued. The Corps 

recognizes that it might not be feasible 

to completely remove the structure after 

its use has been discontinued. For 

example, it might not be feasible to 

remove an entire piling from navigable 

waters after it is no longer needed, but 

the project proponent could remove that 

portion of the piling that extends above 

the bottom of the waterbody so that it 

no longer is an obstruction at the water 

surface. The Corps also acknowledges 

that attempting to remove a temporary 

structure in its entirety has the potential 

to cause more substantial adverse 

environmental effects than leaving a 

portion of the structure in place. 

The general condition is adopted with 

the modifications discussed above. 

2822 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

GC 14. Proper Maintenance. The 

Corps did not propose any changes to 

this general condition. No comments 

were received. The general condition is 

adopted as proposed. 

GC 15. Single and Complete Project. 

The Corps did not propose any changes 

to this general condition. One 

commenter expressed support for 

reissuance of this general condition 

with no change. The general condition 

is adopted as proposed. 

GC 16. Wild and Scenic Rivers. The 

Corps did not propose any changes to 

this general condition. No comments 

were received on this general condition. 

The general condition is adopted as 

proposed. 

GC 17. Tribal Rights. The Corps 

proposed to modify this general 

condition to restore the text that was in 

the general condition for the 2012 NWPs 

and prior NWPs to eliminate any 

confusion about the applicable 

standards that apply when considering 

potential impacts to tribal treaty rights 

when consulting with tribes, and when 

determining the applicability of an NWP 

for a proposed activity. The proposed 

changes to this general condition are 

also intended to clarify that the 

identification of a potential effect to a 

tribal right does not mean that a district 

engineer must exercise his or her 

discretionary authority to require an 

individual permit for a proposed 

activity. The proposed changes to this 

general condition were also intended to 

avoid any confusion between tribal 

consultation policies, tribal rights, and 

the requirements of the Corps’ 

permitting authorities. 

Many commenters objected to the 

proposed changes to general condition 

17 and many commenters expressed 

support for the proposed change. Many 

commenters stated that the 2017 general 

condition’s use of the ‘‘no more than 

minimal effects on’’ standard is clearer 

than the ‘‘impair’’ standard the Corps 

proposes to revert to because the ‘‘no 

more than minimal adverse effects’’ 

standard used throughout the NWPs. 

One commenter stated that ‘‘impair’’ is 

a clearer standard. Many commenters 

asserted that use of ‘‘no more than 

minimal effect’’ threshold in the general 

condition is consistent with Section 

404(e) of the Clean Water Act and 

would not be confusing to retain in the 

general condition. Several commenters 

remarked that a minimal effect 

determination is well established in 

guidance and regulation and use of the 

word ‘‘impair’’ provides no additional 

clarity. 

The Corps is returning the text of this 

general condition to the text that was in 

the 2012 NWPs and prior NWPs to 

eliminate any confusion about the 

applicable standards that apply when 

considering potential impacts to tribal 

treaty rights when consulting with 

tribes, and when determining the 

applicability of an NWP for a proposed 

activity. By using the word ‘‘impair’’ 

instead of ‘‘no more than minimal 

adverse effects on’’ the general 

condition will be clearer that the NWPs 

do not change existing tribal trust duties 

of the Corps, or the rights of tribes. 

Rather, the proposed changes to the 

general condition will serve as a guide 

to users when undertaking tribal 

consultations regarding the application 

of an NWP to a particular activity, and 

when developing protocols regarding 

tribal notification that build upon the 

existing Department of Defense, Army, 

and Corps tribal consultation policies. 

The Clean Water Act section 404(e) 

requirement that no activity authorized 

by an NWP may cause more than 

minimal adverse effects remains 

applicable in the context of potential 

effects to tribal rights, resources, or 

lands. 

Many commenters said that the 

change in language would result in less 

protection for tribal rights and resources 

and is inconsistent with the Corps’ trust 

obligations. Many commenters stated 

that the Corps provides no rationale for 

the proposed change considering its 

rationale for changing the language in 

2017. A few commenters stated that 

tribes should receive copies of PCNs for 

all activities that occur on tribal lands 

or off-reservation areas where treaty 

rights are exercised. One commenter 

stated that the tribes should be allowed 

to make the ‘‘no more than minimal 

effect’’ determination. 

The change in the text of this general 

condition will not result in less 

protection for tribal rights and 

resources. The rationale for the 

proposed change was provided in the 

preamble to the 2020 Proposal (see 85 

FR 57350). The 1998 Department of 

Defense American Indian and Alaska 

Native Policy continues to apply to the 

NWPs and other DA permits. The 

district engineer is authorized to 

determine whether a proposed NWP 

activity will result in no more than 

minimal individual and cumulative 

adverse environmental effects. 

Many commenters said they are 

opposed to removing ‘‘tribal lands’’ and 

its definition from the suite of protected 

resources. Many commenters expressed 

opposition to removing ‘‘protected tribal 

resources’’ and its definition from the 

suite of protected resources. Many 

commenters stated that the proposed 

wording would only protect tribal treaty 

rights and not all tribal rights. A few 

commenters suggested that the 

definition of tribal rights be moved to 

the text of general condition 17. One 

commenter said that the change in 

general condition 17 would not affect 

the Corps’ tribal trust responsibilities. 

One commenter recommended that the 

Corps delete unnecessary definitions 

and should only retain definitions for 

‘‘tribal rights’’ and ‘‘tribal lands’’ as they 

pertain to general condition 17. 

Protection of tribal lands will 

continue through the implementation of 

the 1998 Department of Defense 

American Indian and Alaska Native 

Policy. ‘‘Protected tribal resources’’ is an 

ambiguous term and removal of that 

term from the general condition will 

result in a clearer, more enforceable 

general condition with less risk of 

disputes and litigation concerning 

whether particular resources are 

protected tribal resources. The Corps is 

retaining the definition of ‘‘tribal rights’’ 

in the ‘‘Definitions’’ section of these 

NWPs (Section F). The Corps is also 

retaining the definition of ‘‘tribal lands’’ 

in Section F of the NWPs. 

Many commenters said that 

‘‘identification of a potential effect to a 

tribal right does not mean that a district 

engineer must exercise his or her 

discretionary authority to require an 

individual permit for a proposed 

activity,’’ is contrary to statutory 

authority and the Corps’ trust 

obligations. One commenter encouraged 

the Corps to engage prospective 

applicants for projects that have a 

greater potential to affect tribal rights in 

an optional pre-application meeting 

with the tribes prior to submittal of an 

NWP verification request. One 

commenter said that the general 

condition should include a statement 

requiring the Corps to conduct 

meaningful consultation with 

potentially impacted tribes in 

accordance with tribal protocols. 

District engineers have the final 

decision-making authority as to whether 

a proposed NWP activity that requires 

DA authorization qualifies for NWP 

authorization. District engineers can 

coordinate with tribes to help make 

these decisions, including whether a 

proposed NWP activity complies with 

general condition 17. If a district 

engineer holds a pre-application 

meeting with a project proponent, he or 

she has the discretion to invite tribal 

representatives to attend the meeting. 

When conducting government-togovernment consultation with tribes, 

district engineers endeavor to conduct 

meaningful consultation with tribes. 

One commenter suggested revising 

general condition 17 to read as follows: 

‘‘No NWP activity may cause more than 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2823 

minimal adverse effects to tribal rights, 

including treaty rights, protected tribal 

resources such as ceded territory, any 

sacred/cultural site/landscape or tribal 

lands, as determined by any concerned 

tribe(s).’’ Another commenter 

recommended revising this general 

condition to read as follows: ‘‘No 

activity or its operation may cause 

adverse effects on tribal rights 

(including, but not limited to, reserved 

water rights and treaty rights), protected 

tribal resources, or tribal lands.’’ As 

discussed above, the Corps is adopting 

the proposed text of general condition 

17. 

Several commenters said that the 

change in language does not support the 

Corps’ rationale for the NWPs in light 

E.O. 13783, ‘‘Promoting Energy 

Independence and Economic Growth.’’ 

A few commenters stated that the 

change in language would violate E.O. 

13175. One commenter suggested that 

the condition should include a 

statement requiring the project 

proponent to obtain consent from 

potentially impacted tribes for the NWP 

activity. One commenter requested a 

definition of ‘‘impair.’’ One commenter 

suggested that the Corps provide an 

approved list of tribal entities. One 

commenter suggested that the Corps 

provide guidance and processes relative 

to consultation and timelines. 

General condition 17 was not 

discussed in the report issued by the 

Office of the Assistant Secretary of the 

Army (Civil Works) in response to E.O. 

13783. This change in the text of general 

condition 17 does not violate E.O. 

13175. The Corps continues to consult 

with tribes on proposed NWP activities 

when such consultation is warranted. 

The district engineer determines 

whether a proposed activity requiring 

DA authorization qualifies for NWP 

authorization, and consent from 

potentially impacted tribes is not 

required for that determination. The 

Corps does not believe it is necessary to 

develop an approved list of tribal 

entities. Corps districts are aware of the 

tribes they may need to consult with. 

The Bureau of Indian Affairs may be the 

appropriate entity to develop and 

maintain such a list. The Corps 

Regulatory Program follows a number of 

existing Department of Defense, Army, 

and Corps tribal consultation policies. 

Information on these tribal consultation 

policies are available at: https://

www.usace.army.mil/Missions/CivilWorks/Tribal-Nations/. 

This general condition is adopted as 

proposed. 

GC 18. Endangered Species. The 

Corps proposed to modify this general 

condition to make changes to be 

consistent with the U.S. Fish and 

Wildlife Service’s (FWS) and National 

Marine Fisheries Service’s (NMFS) 

Endangered Species Act (ESA) section 7 

consultation regulations that were 

published in the Federal Register on 

August 27, 2019 (84 FR 44976). Those 

regulations amended the definition of 

‘‘effects of the action’’ at 50 CFR 402.02 

by removing the term ‘‘indirect effects.’’ 

Several commenters supported the 

proposed changes to ensure that general 

condition 18 aligns with the current 

ESA implementing regulations at 50 

CFR part 402. A few commenters 

suggested that the Corps incorporate the 

new ESA section 7 regulation 

definitions directly into the general 

condition rather than by referencing 

provisions in the Code of Federal 

Regulations. These commenters also 

suggested adding a definition for 

‘‘action area’’ to the text of the general 

condition. 

The Corps believes that it is more 

appropriate to reference the current ESA 

section 7 regulations in the general 

condition rather than copying the text of 

the applicable provisions into the 

general condition itself. During the 

process of determining whether a 

proposed NWP activity ‘‘may affect’’ 

listed species or critical habitat, the 

Corps will utilize the definition of 

‘‘action area’’ at 50 CFR 402.02 and 

there is no need to provide the 

definition of that term in the text of 

general condition 18. 

Several commenters objected to the 

removal of ‘‘direct effects’’ and ‘‘indirect 

effects’’ definitions from the general 

condition and asserted that ESA section 

7 consultation compliance will not be 

achieved without the analysis of the 

effects and/or would cause significant 

adverse impacts to endangered species. 

One commenter expressed opposition to 

the proposed change to general 

condition 18 because he or she is 

opposed to the 2019 amendments to the 

U.S. FWS’s and NMFS’s ESA section 7 

regulations. One commenter stated that 

the Corps must seek concurrence from 

the U.S. FWS or NMFS for any ‘‘no 

effect’’ determination. 

The terms ‘‘direct effect’’ and 

‘‘indirect effect’’ are no longer used in 

50 CFR part 402. When the district 

engineer evaluates a PCN for a proposed 

NWP activity to determine whether the 

proposed activity ‘‘may affect’’ listed 

species or critical habitat, he or she 

applies the definition of ‘‘effects of the 

action’’ at 50 CFR 402.02, as well as the 

U.S. FWS’s and NMFS’s regulations for 

identifying activities that are reasonably 

certain to occur (50 CFR 402.17(a)) and 

identifying the consequences caused by 

the proposed action (50 CFR 402.17(b)). 

The ESA section 7 consultation 

handbook issued by the U.S. FWS and 

NMFS in 1998 states that a federal 

agency is not required to obtain written 

concurrence from the U.S. FWS or 

NMFS for its ‘‘no effect’’ 

determinations. 

One commenter stated that 

clarification is needed as to what is 

meant by non-Federal permittees that 

require pre-construction notification 

under paragraph (c) of this general 

condition. A few commenters said that 

the general condition only requires 

project proponents to submit a PCN if a 

proposed activity might affect a species 

or its critical habitat, which ignores the 

Corps responsibility to conference on 

species proposed for listing. These 

commenters suggested revising this 

general condition to include proposed 

species. Several commenters requested 

clarification of the term ‘‘in the 

vicinity’’ in paragraph (c) of this general 

condition. One commenter said that the 

Corps inappropriately relies on 

information contained in the PCN to 

make its effect determinations and must 

independently verify the potential for a 

listed species to be affected. 

Generally speaking, a non-federal 

permittee is a permittee that is not a 

federal agency. There may be limited 

circumstances where a non-federal 

agency might be considered as having 

ESA section 7 obligations similar to 

those of a federal agency. For example, 

the Federal Highway Administration 

may assign a state Department of 

Transportation the responsibility for 

complying with non-NEPA 

environmental statutes such as the ESA. 

The Corps has modified paragraph (c) 

of this general condition to be consistent 

with 33 CFR 330.4(f)(2), which states 

non-federal permittees shall notify the 

district engineer if any Federally listed 

(or proposed for listing) endangered or 

threatened species or critical habitat 

might be affected or is in the vicinity of 

the project. The Corps also added 

‘‘critical habitat proposed for such 

designation’’ to paragraph (c). These 

changes are necessary for species 

proposed for listing and critical habitat 

proposed for such designation because 

section 7(a)(4) of the ESA requires 

agencies to confer with the U.S. FWS or 

NMFS on any agency action which is 

likely to jeopardize the continued 

existence of any species proposed to be 

listed under section 4 of the ESA or 

result in the destruction or adverse 

modification of critical habitat proposed 

to be designated for such species. The 

Corps has modified the first sentence of 

paragraph (c) as follows: ‘‘Non-federal 

permittees must submit a preconstruction notification to the district 

2824 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

engineer if any listed species or 

designated critical habitat (or species 

proposed for listing or critical habitat 

proposed for such designation) might be 

affected or is in the vicinity of the 

activity, or if the activity is located in 

designated critical habitat or critical 

habitat proposed for such designation, 

and shall not begin work on the activity 

until notified by the district engineer 

that the requirements of the ESA have 

been satisfied and that the activity is 

authorized.’’ The Corps has added 

‘‘species proposed for listing’’ and 

‘‘critical habitat proposed for such 

designation’’ where appropriate in other 

sentences in this paragraph. 

When reviewing a PCN for a proposed 

NWP activity that might affect species 

proposed for listing or critical habitat 

proposed for such designation, or is 

located in critical habitat proposed for 

such designation, the district engineer 

will evaluate the effects of the proposed 

NWP activity on the species proposed 

for listing or the critical habitat 

proposed for designation. If the district 

engineer determines that the proposed 

NWP activity is likely to jeopardize the 

continued existence of any proposed 

species or result in the destruction or 

adverse modification of proposed 

critical habitat, he or she will initiate a 

conference with the U.S. FWS and/or 

NMFS in accordance with 50 CFR 

402.10. If the district engineer 

determines that a conference is 

necessary, he or she will notify the nonfederal applicant within 45 days of 

receipt of a complete PCN. The activity 

is not authorized by NWP until the 

district engineer has notified the project 

proponent that the requirements of ESA 

section 7 have been satisfied 

The Corps added ‘‘or conference’’ to 

the second to last sentence of paragraph 

(c) to address situations where the 

district engineer conducts an ESA 

section 7 conference with the U.S. FWS 

or NMFS for a proposed NWP activity 

that may affect a species proposed for 

listing or proposed critical habitat. The 

Corps also modified paragraph (d) of 

this general condition to state that as a 

result of a conference with the U.S. FWS 

or NMFS the district engineer may add 

species-specific permit conditions to the 

NWPs. 

The Corps is adding ‘‘or critical 

habitat proposed for such designation’’ 

to this general condition to ensure that 

these NWPs do not authorize any 

activities that are likely to result in the 

destruction or adverse modification of 

proposed critical habitat. The general 

condition already prohibits the use of 

NWPs for any activity that is likely to 

jeopardize the continued existence of 

species proposed for listing. The prior 

exclusion of proposed critical habitat 

was an administrative oversight. 

The term ‘‘in the vicinity’’ for the 

purposes of paragraph (c) of this general 

condition cannot be defined at a 

national level. What constitutes ‘‘in the 

vicinity’’ can vary substantially by 

species, environmental setting, the 

medium in which the species lives (e.g., 

water, air, or in the ground), and other 

factors. When reviewing a PCN, the 

district engineer makes an independent 

determination of whether the proposed 

activity ‘‘may affect’’ listed species or 

designated critical habitat and thus 

requires ESA section 7 consultation. 

The district engineer relies in part on 

information in the PCN, but he or she 

will also utilize other information, 

including local knowledge of the area, 

and the species and the habitats in 

which the listed species lives in. 

One commenter said general 

condition 18 should require PCNs for 

activities authorized by NWPs 3, 12, 13, 

14, 21, 39, 44 and 48. One commenter 

stated that the Corps must not rely 

solely on permittees submitting PCNs to 

comply with its ESA obligations. One 

commenter suggested revising the 

general condition to state that the ESA 

section 7 consultation for an NWP 

activity will cover the entire project, to 

clarify that the entire action area must 

be examined and not just the activities 

on lands under the Corps’ jurisdiction. 

All activities authorized by NWPs 21, 

39, and 44 require PCNs to district 

engineers. The district engineers will 

review those proposed activities and 

determine whether ESA section 7 

consultation is required. Activities 

authorized by NWPs 3, 12, 13, 14, and 

48 require PCNs under specific 

circumstances, and district engineers 

will review those PCNs to identify 

proposed activities that ‘‘may affect’’ 

listed species or designated critical 

habitat. For those activities that do not 

require PCNs under the text of those 

general permits, paragraph (c) applies 

when the project proponent is a nonfederal permittee. If any listed species or 

designated critical habitat might be 

affected or is in the vicinity of the 

proposed NWP activity, or if the 

proposed NWP activity is located in 

designated critical habitat, then the 

project proponent is required to submit 

a PCN so that the district engineer can 

determine whether the proposed 

activity ‘‘may affect’’ listed species or 

designated critical habitat. When 

determining the scope of the ESA 

section 7 consultation, the district 

engineer applies the U.S. FWS’s and 

NMFS’s regulations at 50 CFR part 402, 

including the definitions of ‘‘action 

area’’ and ‘‘effects of the action.’’ 

One commenter recommended that 

the Corps adhere to the 45-day review 

time to determine whether a proposed 

NWP activity ‘‘may affect’’ or will have 

‘‘no effect’’ on listed species. 

Alternatively, this commenter suggested 

that the review period not exceed 90 

days under any circumstances. One 

commenter expressed support for the 

use of regional programmatic ESA 

section 7 consultations to satisfy the 

requirements of general condition 18. 

Paragraph (c) of general condition 18 

already requires the district engineer to 

notify the non-federal applicant within 

45 days of receipt of a complete PCN 

whether the proposed activity will have 

‘‘no effect’’ in listed species or 

designated critical habitat or where it 

‘‘may affect’’ listed species or 

designated critical habitat and require 

section 7 consultation with the U.S. 

FWS and/or NMFS. If the district 

engineer has to conduct section 7 

consultation with the U.S. FWS or 

NMFS, the consultation process may 

take longer than 90 days. Formal section 

7 consultations conclude within 90 days 

after initiation unless the timeframe is 

extended in accordance with the section 

7 regulations at 50 CFR 402.14(e). For 

informal consultations, the U.S. FWS 

and NMFS are required to provide 

written concurrence or non-concurrence 

with the federal agency’s ‘‘may affect, 

not likely to adversely affect’’ 

determination within 60 days, unless an 

extension occurs (see 50 CFR 

402.13(c)(2)). The Corps cannot issue 

the NWP verification until the section 7 

consultation is completed and the 

applicant cannot proceed without 

receiving a verification from the Corps 

as provided for in paragraph (a)(2) of 

general condition 32 because 

compliance with ESA cannot be waived. 

The Corps will continue to utilize 

regional programmatic consultations for 

the NWPs, and work with the U.S. FWS 

and NMFS to develop new regional 

programmatic consultations. 

One commenter suggested changing 

paragraph (g) of general condition 18 to 

advise project proponents to only use 

the U.S. FWS’s IPaC website at (http:// 

ww.fws.gov/ipac) because other websites 

are usually outdated. This commenter 

also recommended requiring project 

proponents to append the IPaC output 

document to their consultation package. 

One commenter requested that the text 

of the general condition be modified to 

include specific instructions on the 

process for ESA Section 7 consultation 

where the Corps has limited regulatory 

authority, such linear projects where the 

Corps’ jurisdiction is limited to 

crossings of jurisdictional waters and 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2825 

the crossings are separated by upland 

areas. 

Project proponents should be allowed 

to use whatever information that can 

help them determine whether the PCN 

threshold in paragraph (c) of general 

condition 18 is triggered. The U.S. 

FWS’s IPaC tool is just one tool that 

might provide useful information to 

prospective permittees. There may be 

other tools, such as databases and 

websites managed by state and local 

governments and non-governmental 

organizations that may be helpful in 

determining whether a proposed NWP 

activity might affect listed species, if 

listed species are in the vicinity of a 

proposed activity, or if the activity is 

located in designated critical habitat. 

This includes listed species under the 

jurisdiction of the NMFS, which are not 

included in IPaC. The Corps does not 

believe that there should be a 

requirement to the output from IPaC in 

the PCN because not all listed species 

are included in that information system. 

For linear projects, such as various 

types of utility line activities authorized 

by NWPs 12, 57, and 58, the Corps 

applies the ESA section 7 regulations at 

50 CFR part 402, including the 

definition of ‘‘effects of the action’’ and 

other provisions in determining whether 

a proposed NWP activity ‘‘may affect’’ 

listed species or designated critical 

habitat, and for initiating ESA section 7 

consultation for those proposed 

activities where the district engineer 

makes a ‘‘may affect’’ determination. If 

ESA section 7 consultation is required 

for activities authorized by NWPs 12, 

57, and 58, the Corps and U.S. FWS 

and/or NMFS work together on a 

comprehensive review of the overall 

project in accordance with the 

definition of ‘‘effects of the action’’ and 

other provisions of 50 CFR part 402, 

including the 2019 amendments the U.S 

FWS and NMFS made to those 

regulations (see 84 FR 44976). For ESA 

section 7 purposes where the Corps has 

a limited regulatory role under the 

Clean Water Act and/or Section 10 of 

the Rivers and Harbors Act of 1899, the 

Corps, with the assistance of the permit 

applicant, can provide the U.S. FWS or 

NMFS with a biological assessment that 

evaluates the larger project as a whole 

but that clearly distinguishes between 

areas and effects subject to the Corps’ 

jurisdiction and areas and effects 

outside of its jurisdiction. If the 

proposed activity requires formal ESA 

section 7 consultation, the U.S. FWS 

and NMFS can issue an incidental take 

statement for a biological opinion 

where, in accordance with ESA section 

7(b)(4)(iv) they can assign responsibility 

of specific terms and conditions of the 

incidental take statement to the Corps, 

the applicant, or both taking into 

account their respective roles, 

authorities, and responsibilities (see 84 

FR 44977). 

A few commenters said that it is 

likely activities are occurring that are 

not in compliance with general 

condition 18 because the Corps does not 

require PCNs for all activities. One 

commenter stated, with regard to ESAlisted species, PCNs should not only 

include the immediate area, rather the 

entire area impacted by NWP activities, 

which must be consulted on 

programmatically with the U.S. FWS. 

This commenter provided an example of 

studies have shown that pollutants and 

sediments can impact critically 

imperiled mussels up to 10 river miles 

from the impact location and said that 

ESA section 7 consultations should 

include the evaluation of 10 river miles 

of potential effects from the NWP 

impact location and analyses of 

cumulative effects as well. 

In order to obtain NWP 

authorizations, project proponents must 

comply with all terms and conditions of 

the NWPs (see 33 CFR 330.1(c)), 

including general condition 18. If a 

project proponent does not comply with 

the requirements of general condition 

18, including the PCN requirements in 

paragraph (c) of that general condition, 

the activity is not authorized by an 

NWP. When determining whether a 

proposed NWP activity may affect listed 

species or designated critical habitat, 

the district engineer applies the 

regulations issued by the U.S. FWS and 

NMFS at 50 CFR part 402, including the 

definition of ‘‘effects of the action’’ and 

other provisions the determine the 

scope of the ESA section 7 consultation 

and analysis of effects or consequences 

This general condition is adopted 

with the modifications discussed above. 

GC 19. Migratory Birds and Bald and 

Golden Eagles. The Corps proposed to 

revise the wording of this general 

condition to clarify that members of the 

regulated public should determine for 

themselves, with the assistance of the 

U.S. Fish and Wildlife Service, what 

‘‘take’’ permits, if any, they might 

require under the Migratory Bird Treaty 

Act or the Bald and Golden Eagle 

Protection Act. This General Condition 

makes clear that Project Proponents are 

responsible for complying with the 

Migratory Bird Treaty Act and the Bald 

and Golden Eagle Protection Act, 

including obtaining any ‘‘take’’ permits 

that may be required under the U.S. 

Fish and Wildlife Service’s regulations 

issued under those statutes. 

Several commenters expressed 

support for making no changes to this 

general condition. One commenter 

noted that even though the Solicitor’s 

Opinion has been vacated, the Corps 

should move text from the preamble to 

the general condition if reforms to the 

Migratory Bird Treaty Act are finalized 

by the administration before the final 

NWPs are issued. One commenter said 

that applicants should be encouraged to 

coordinate with wildlife agencies. 

Several commenters stated that 

reference to the Solicitor’s Opinion in 

the preamble should be stricken because 

it was recently vacated by a federal 

district court. 

The text of the general condition is 

sufficient to address the Migratory Bird 

Treaty Act and the Bald and Golden 

Eagle Protection Act without moving 

text from the preamble of the proposed 

rule to the general condition. Project 

proponents can coordinate their 

proposed projects with federal and state 

wildlife agencies. There is no need to 

strike the text that was in the preamble 

to the 2020 Proposal because it was 

background used to solicit public 

comment, and it was current at the time 

the proposal was published in the 

Federal Register. 

This general condition is adopted as 

proposed. 

GC 20. Historic Properties. The Corps 

proposed to modify paragraph (c) of this 

general condition to state that the 

district engineer’s identification efforts 

for historic properties shall be 

commensurate with potential impacts. 

The Corps also proposed to modify 

paragraph (d) of this general condition 

to inform non-federal permittees that if 

pre-construction notification is required 

under paragraph (c) of this general 

condition, then he or she shall not begin 

the NWP activity until the district 

engineer has determined the proposed 

activity has no potential to cause effects 

to historic properties or has completed 

NHPA section 106 consultation. 

Paragraph (d) requires the district 

engineer to notify the non-federal 

applicant within 45 days of receipt of a 

complete PCN whether NHPA section 

106 consultation is required. 

Several commenters expressed 

support for the proposed changes to this 

general condition. A few commenters 

suggested adding language to the 

general condition to require disclosure 

of the qualifications of the person who 

would make an effect determination for 

the purposes of Section 106 of the 

National Historic Preservation Act 

(NHPA). That individual would need to 

satisfy the Secretary of the Interior’s 

Standards for Professional 

Qualifications in Archaeology and 

Historic Preservation. 

2826 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

The Corps does not believe it would 

be appropriate to add text to this general 

condition to require disclosure of the 

qualifications of people making effects 

determinations for the purposes of 

section 106 of the NHPA. Effect 

determinations may be made by a 

variety of agency officials, including 

Corps district staff. 

Many commenters stated that this 

general condition does not comply with 

the NHPA and does not satisfy the 

Corps Section 106 obligations with 

regards to the NWPs as it unlawfully 

delegates its Section 106 responsibilities 

to non-federal permittees and 

establishes a review process that is not 

consistent with the Advisory Council on 

Historic Preservation’s (ACHP’s) 

regulations at 36 CFR part 800. A few 

commenters said that this general 

condition should not reference 

Appendix C to 33 CFR part 325, because 

Appendix C has been determined by the 

federal courts, the ACHP, and other 

federal agencies to be unlawful. One 

commenter expressed support for the 

Corps’ reliance on Appendix C and its 

interim guidance, stating that they are 

generally consistent with the ACHP’s 

regulations. 

This general condition does not 

delegate the Corps’ section 106 

responsibilities to permit applicants. 

The responsibility for making effect 

determinations under section 106 of the 

NHPA for NWP activities falls to the 

district engineer. For non-federal 

permittees, paragraph (c) of general 

condition 20 requires the submission of 

a PCN for a proposed activity that might 

have the potential to cause effects to 

historic properties. The Corps’ 

regulations for complying with section 

106 of the NHPA are found at Appendix 

C to 33 CFR part 325. Appendix C 

remains in effect as a counterpart 

regulation to 36 CFR part 800, and no 

federal court has invalidated Appendix 

C. 

A few commenters objected to this 

general condition, saying that it 

encourages applicants to consult with 

State Historic Preservation Officers 

(SHPOs), Tribal Historic Preservation 

Officers (THPOs) and tribes. These 

commenters said that the Corps cannot 

delegate its tribal consultation 

obligations to applicants. One 

commenter stated that the proposed 

changes to general condition 20 will 

impact Native American cultural 

resources. 

Paragraph (c) of this general condition 

encourages permit applicants to seek 

assistance from SHPOs, THPOs, and 

designated tribal representatives to help 

ensure compliance with this general 

condition. Seeking assistance is not 

equivalent to conducting consultation. 

Section 106 consultation remains the 

responsibility of the Corps. The 

requirements of general condition 20, 

plus the changes being made in this 

final rule, will ensure that section 106 

consultation occurs for NWP activities 

that have potential to cause effects to 

Native American cultural resources that 

meet the definition of ‘‘historic 

property’’ in Section F, Definitions. 

Several commenters said that the 

proposed change to paragraph (c), 

which states that the district engineer’s 

identification efforts for historic 

properties shall be commensurate with 

potential impacts, should be further 

revised for clarity. A few commenters 

expressed opposition to this proposed 

change to paragraph (c) and requested 

that it be removed in the final rule. 

Several commenters stated that the text 

in paragraph (c) should make clear that 

the evaluation is only associated with 

the extent of the Corps’ jurisdiction. 

One commenter said that the proposed 

change gives the Corps justification to 

decline to identify certain historic 

properties if the district engineer 

determines that the property or 

properties will not be impacted by the 

proposed activity. A few commenters 

opined that the Corps fails to evaluate 

areas outside its jurisdiction, 

particularly with linear projects, with is 

contrary to current regulations. 

The change to paragraph (c) regarding 

the district engineer’s identification 

efforts for historic properties is 

consistent with the ACHP’s regulations 

at 36 CFR 800.4(b)(1) regarding the level 

of identification efforts. Section 

800.4(b)(1) states that the federal agency 

should take into account the 

‘‘magnitude and nature of the 

undertaking and the degree of federal 

involvement, the nature and extent of 

potential effects on historic properties, 

and the likely nature and location of 

historic properties within the area of 

potential effects.’’ When evaluating an 

NWP PCN, the district engineer will 

identify the permit area in accordance 

with the criteria in paragraph 1(d) of 

Appendix C to 33 CFR part 325. The 

Corps will evaluate direct and indirect 

effects caused by the proposed NWP 

activity. If an historic property is not 

directly or indirectly affected by the 

proposed NWP activity, the Corps does 

not have the authority to prevent effects 

to historic properties caused by 

activities outside of its control and 

responsibility. 

One commenter recommended that 

the Corps adhere to the 45-day review 

time or as an alternative change 

paragraph (c) of this general condition 

so that the district engineer’s review of 

the PCN does not exceed 90 days. One 

commenter stated that language 

requiring an applicant to continue to 

wait beyond 45 days if they have not 

heard back from the Corps creates the 

potential for an indefinite delay. This 

commenter suggested adding a 

requirement for the district to establish 

a deadline for notifying the applicant on 

whether NHPA section 106 consultation 

is required. 

Paragraph (d) of general condition 20 

states that for non-federal permittees, 

the district engineer will notify the 

prospective permittee within 45 days of 

receipt of a complete PCN whether 

NHPA section 106 consultation is 

required. The section 106 consultation 

process may take longer than 45 days. 

The NWP verification cannot be issued 

and the project applicant cannot 

proceed with the proposed activities 

under Corps jurisdiction until the 

section 106 consultation process has 

been completed. 

A few commenters said that Corps 

districts often override the permittees’ 

determination as to whether a PCN is 

required for a proposed activity under 

paragraph (c). One commenter 

recommended modifying or revising 

paragraph (a) of general condition 20 in 

a manner consistent with paragraph (a) 

of general condition 18 to focus on the 

threshold that triggers the requirement 

for section 106 consultation, rather than 

determinations made by district 

engineers once a PCN is submitted. One 

commenter recommended timely review 

of scopes of work and requested that the 

Corps make final determinations 

regarding scopes of review and not 

allow any revisions to those 

determinations. 

For an NWP activity, it is ultimately 

the district engineer’s responsibility to 

determine compliance with section 106 

of the NHPA. As additional information 

is revealed during the review of a PCN 

or during section 106 consultation, it 

may be necessary to change the scope of 

review to ensure compliance with the 

requirements of section 106 of the 

NHPA. The Corps has modified 

paragraph (a) of this general condition 

to state that ‘‘no activity is authorized 

under any NWP which may have the 

potential to cause effects to properties 

listed, or eligible for listing, in the 

National Register of Historic Places until 

the requirements of Section 106 of the 

National Historic Preservation Act 

(NHPA) have been satisfied.’’ 

One commenter said that clarification 

is needed on who are the non-federal 

permittees that need to submit PCNs 

under paragraph (c). One commenter 

remarked that the terms ‘‘might have the 

potential to cause’’ and ‘‘potentially 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2827 

eligible’’ are vague terms and that Corps 

districts are applying these 

requirements inconsistently and more 

expansively than appropriate. One 

commenter said that the ‘‘might have 

the potential’’ standard is a higher 

threshold than the threshold set forth in 

the ACHP’s regulations at 36 CFR part 

800. 

As a general matter, a non-federal 

permittee is a permittee that is not a 

federal agency. There may be limited 

circumstances where a non-federal 

agency might be considered as having 

NHPA section 106 obligations similar to 

those of a federal agency. For example, 

the Federal Highway Administration 

may assign a state Department of 

Transportation the responsibility for 

complying with non-NEPA 

environmental statutes such as the 

NHPA. The purpose of the ‘‘might have 

the potential to cause effects’’ threshold 

in paragraph (c) of this general 

condition is to require submittal of 

PCNs for proposed NWP activities that 

might have a possibility of causing 

effects to historic properties, so that the 

district engineer can determine whether 

section 106 consultation is required for 

a proposed NWP activity. ‘‘Potentially 

eligible’’ is another threshold that is 

intended to provide an opportunity for 

further review to determine whether a 

historic property is present. These 

thresholds cannot be precisely defined, 

and involve some degree of subjectivity. 

One commenter stated that paragraph 

(b) of this general condition improperly 

designates other federal agencies as the 

lead with respect to Section 106 without 

their agreement. This commenter further 

noted that this might be problematic 

given the proposal not to require PCNs 

from federal permittees for proposed 

activities that might have the potential 

to cause effects to historic properties. 

Other federal agencies have their own 

obligations to comply with section 106 

of the NHPA. If a proposed NWP 

activity being undertaken by another 

federal agency requires a PCN, 

paragraph (b) of this general condition 

requires the federal permittee to submit 

appropriate documentation 

demonstrating compliance with the 

requirements of section 106. After 

reviewing that documentation, the 

district engineer may notify the federal 

permittee that additional section 106 

consultation may be necessary. Nonfederal and federal permittees have 

different thresholds under this general 

condition because their responsibilities 

under section 106 are different. 

This general condition is adopted 

with the modifications discussed above. 

GC 21. Discovery of Previously 

Unknown Remains and Artifacts. The 

Corps did not propose any changes to 

this general condition. One commenter 

recommended reissuance of the general 

condition with no additional restrictive 

provisions. 

This general condition is adopted as 

proposed. 

GC 22. Designated Critical Resource 

Waters. The Corps did not propose any 

changes to this general condition. One 

commenter recommended revising this 

general condition to include state 

designated critical resource waters 

rather than deferring to Corps district 

engineers to designate certain waters at 

a later date. One commenter 

recommended adding proposed new 

NWPs C and D to the list of NWPs in 

paragraph (a) of this general condition. 

This commenter also suggested adding 

proposed new NWPs A and B to the list 

of NWPs in paragraph (b) of this general 

condition. Two commenters said that if 

the Corps removes the PCN 

requirements for federal permittees, 

federal agencies should still be required 

to submit PCNs for proposed activities 

in designated critical resource waters. 

After providing notice and an 

opportunity for public comment, the 

Corps is continuing to require the longstanding practice of allowing district 

engineers to add specific waters to this 

general condition. States that want 

waters of particular environmental or 

ecological significance to be subjected to 

this general condition should provide 

their recommendations to the 

appropriate district engineer for 

consideration. Since NWP 12 has been 

in paragraph (a) of this general 

condition since it was first adopted in 

2000 (65 FR 12872), for consistency the 

Corps has added new NWPs 57 and 58 

to this general condition. New NWPs 55 

(seaweed mariculture activities) and 56 

(finfish mariculture activities) require 

PCNs for all activities, so it is 

unnecessary to add these NWPs to the 

list of NWPs in paragraph (b) of this 

general condition. In addition, the Corps 

is retaining PCN requirements for 

federal permittees. 

This general condition is adopted 

with the modifications discussed above. 

GC 23. Mitigation. The Corps 

proposed to modify paragraph (d) of this 

general condition to establish a 

threshold for requiring compensatory 

mitigation for losses of stream bed that 

is similar to the threshold for wetlands 

in paragraph (c) of this general 

condition. The Corps proposed to add a 

1⁄10-acre threshold for requiring 

compensatory mitigation for losses of 

stream beds that require preconstruction notification, unless the 

district engineer determines on a caseby-case basis that compensatory 

mitigation should not be required 

because other forms of mitigation would 

be more environmentally appropriate 

and issues an activity-specific waiver of 

this requirement. 

A few commenters expressed support 

for the changes to this general 

condition. One commenter objected to 

the proposed changes and 

recommended that this general 

condition be reissued with no changes. 

One commenter stated that 

compensatory mitigation should not be 

required when compensatory mitigation 

is required by other federal or state 

laws, rules, or regulations. Another 

commenter said that the Corps should 

focus on improving consistency 

between districts on when 

compensatory mitigation is required for 

NWP activities. 

Changes to this general condition are 

necessary to address the removal of the 

300 linear foot limit for losses of stream 

bed under NWPs 21, 29, 39, 40, 42, 43, 

44, 50, 51, and 52. District engineers 

impose compensatory mitigation 

requirements on specific activities 

authorized by NWPs to ensure that 

those activities result in no more than 

minimal individual and cumulative 

adverse environmental effects. If a 

proposed NWP activity is regulated by 

another federal agency or a state, tribal, 

or local agency, and that agency requires 

compensatory mitigation for that 

proposed activity, the district engineer 

may consider those compensatory 

mitigation requirements before 

determining whether additional 

compensatory mitigation is required for 

that activity. The Corps should not be 

imposing duplicative compensatory 

mitigation requirements when the 

resource concerns are already being 

addressed by another federal, tribal, 

state, or local agency. The Corps 

believes that federal and state regulatory 

programs should complement rather 

than duplicate one another (see 33 CFR 

320.1(a)(5). Since aquatic resources can 

vary substantially across the country, 

different Corps districts may establish 

different compensatory mitigation 

requirements. 

One commenter disagreed that project 

proponents design projects to minimize 

losses of waters of the United States to 

qualify for NWP authorizations to avoid 

the cost of providing compensatory 

mitigation to offset the authorized 

losses. One commenter said that other 

forms of mitigation used for NWP 

activities should include best 

management practices, minimization 

measures, activities that result in 

improvement of wetland and stream 

habitat, and actions that improve water 

quality. Another commenter disagreed 

2828 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

that best management practices and 

other forms of mitigation are more 

environmentally preferable forms of 

mitigation, and that best management 

practices should be implemented during 

the design, construction, and operations 

stages of a project. 

The data the Corps collects on the 

impacts to waters of the United States 

authorized by the NWPs shows that 82 

percent of verified impacts authorized 

by NWPs in 2018 are less than 1⁄10-acre 

(see Figure 5.1 of the Regulatory Impact 

Analysis for this final rule). During 

2018, only 5% of the verified impacts 

authorized by NWPs resulted in impacts 

to 0.25 acre to 0.5 acre. For those NWPs 

that have a qualitative limit in acres, a 

1⁄2-acre limit is the most common 

acreage limit. The small percentage of 

verified NWP activities that impact 

between 0.25 and 0.5 acre compared to 

the much larger percentage of verified 

NWP activities that impact less than 

1⁄10-acre demonstrates the reduction of 

impacts (i.e., minimization) that is 

incentivized by general condition 23. 

District engineers determine the 

compensatory mitigation requirements 

for specific NWP activities, and can 

require forms of mitigation other than 

compensatory mitigation to ensure that 

the authorized NWP activity results in 

no more than minimal individual and 

cumulative adverse environmental 

effects. The use of other forms of 

mitigation is consistent with the 

watershed approach to compensatory 

mitigation described in the Corps’ 

regulations at 33 CFR 332.3(c). The use 

of best management practices and other 

forms of mitigation may be effective at 

reducing adverse environmental effects 

so that compensatory mitigation is not 

necessary to ensure that an NWP 

activity results in only minimal 

individual and cumulative adverse 

environmental effects. 

A couple of commenters said that 

compensatory mitigation cannot legally 

be used to make minimal adverse effects 

determinations and that Section 404(e) 

of the Clean Water Act does not state 

that mitigation will be considered to 

ensure activities would cause only 

minimal adverse environmental effects. 

These commenters objected to the use of 

compensatory mitigation to allow more 

impacts to waters and wetlands. One 

commenter stated that the Corps has not 

provided any scientific or factual 

evidence to conclude that compensatory 

mitigation helps ensure that NWP 

activities do not result in more than 

minimal adverse environmental effects. 

A couple of commenters said that 

compensatory mitigation does not 

adequately or fully replace wetland or 

stream bed losses. Several commenters 

said they do not support the use of 

mitigation as a means to allow more 

impacts and justify findings of no more 

than minimal adverse environmental 

effects. 

The use of compensatory mitigation 

and other forms of mitigation to ensure 

that activities authorized by an NWP 

result in no more than minimal 

individual and cumulative adverse 

environmental effects is codified in the 

Corps’ NWP regulations at 33 CFR 

330.1(e)(3). Section 404(e) of the Clean 

Water Act does not prescribe how the 

Corps is to ensure that the categories of 

activities authorized by general permits 

such as the NWPs will cause only 

minimal adverse environmental effects 

when performed separately, and will 

have only minimal cumulative adverse 

effect on the environment. Therefore, 

the Corps has discretion on how to 

comply with the requirement in the 

statute. Wetlands can be restored to 

improve the degree of ecological 

functions they provide (e.g., NRC 2001), 

to offset wetland losses authorized by 

the NWPs and other types of DA 

permits. Streams can also be restored to 

increase the degree of ecological 

functions they provide (e.g., Wohl et al. 

2015), which can also be used to offset 

losses of stream functions caused by 

activities authorized by NWPs and other 

types of DA permits. 

One commenter stated that this 

general condition should require 

compensatory mitigation for all losses of 

wetlands, special aquatic sites, and 

stream beds authorized by an NWP, not 

just those losses exceeding 1⁄10-acre that 

require PCNs. One commenter said that 

current compensatory mitigation 

requirements only replace, not improve, 

aquatic resources, and to protect tribal 

treaty rights, the Corps should require 

improvements of aquatic resources to 

ensure the successful recovery of 

salmon. 

Compensatory mitigation and other 

forms of mitigation are only required by 

district engineers when it is necessary to 

ensure that NWP activities result in no 

more than minimal individual and 

cumulative adverse environmental 

effects (see 33 CFR 330.1(e)(3)), and the 

Corps has determined that 1⁄10-acre is an 

appropriate threshold with respect to 

wetland mitigation. Compensatory 

mitigation can be provided through the 

restoration, enhancement, 

establishment, and protection of aquatic 

resources to offset losses of those 

functions caused by activities 

authorized by the NWPs and other types 

of DA permits. A compensatory 

mitigation credit is 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 (see 33 CFR 332.2). Compensatory 

mitigation required for NWP activities 

can help improve aquatic resources that 

may assist in the successful recovery of 

salmon. 

One commenter said the Corps relies 

too heavily on mitigation banks and inlieu fee programs to provide 

compensatory mitigation despite a large 

body of scientific evidence that 

concluded that wetland banks are 

ineffective and poorly monitored. A 

couple of commenters stated that 

mitigation banks and in-lieu fee 

programs do not replace lost functions 

and values at impact sites. One 

commenter said that the Corps relies on 

unrealized mitigation requirements to 

allow significant environmental harm to 

occur under the NWP program and that 

previous reports from the National 

Research Council and the Government 

Accountability Office have shown that 

mitigation under the NWP program has 

not proven successful and therefore, 

does not compensate for lost wetlands. 

Regulations for the establishment and 

use of mitigation banks and in-lieu fee 

programs to provide compensatory 

mitigation for activities authorized by 

the NWPs and other forms of DA 

authorization were issued by the Corps 

in 2008 (see 73 FR 19594). The 2008 

rule establishes establish performance 

standards and criteria for the use of 

permittee-responsible compensatory 

mitigation, mitigation banks, and in-lieu 

programs to improve the quality and 

success of compensatory mitigation 

projects for activities authorized by 

Department of the Army permits. The 

2008 mitigation rule incorporated many 

of the recommendations made by the 

National Research Council in its 2001 

titled ‘‘Compensating for Wetland 

Losses Under the Clean Water Act’’ to 

improve the ecological outcomes of 

wetland compensatory mitigation 

projects. The 2005 Government 

Accountability Office report titled 

‘‘Wetlands Protection: Corps of 

Engineers Does Not Have an Effective 

Oversight Approach to Ensure That 

Compensatory Mitigation Is Occurring’’ 

also included recommendations for 

improving the Corps’ oversight and 

outcomes of compensatory mitigation 

projects performed by permittees, 

mitigation banks, and in-lieu-fee 

program sponsors, and the Corps 

incorporated those recommendations in 

the 2008 mitigation rule. 

One commenter said the NWP 

program should not be used to authorize 

activities that requiring compensatory 

mitigation and that project proponents 

should have to apply for individual 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2829 

permits for activities requiring 

compensatory mitigation. One 

commenter stated that using mitigation 

to reduce impacts below a threshold of 

significance violates the National 

Environmental Policy Act. 

The use of compensatory mitigation 

for NWP activities is an important tool 

for authorizing activities that have no 

more than minimal individual and 

cumulative adverse environmental 

effects by NWP. Requiring individual 

permits for any NWP activity that 

requires compensatory mitigation would 

not provide any additional 

environmental protection because the 

ecological outcomes of compensatory 

mitigation projects is more dependent 

on site selection, planning, and 

implementation, as well as monitoring 

and adaptive management to address 

deficiencies in the compensatory 

mitigation project that impede the 

ecological success of that project. The 

type of DA authorization used to 

authorize a regulated activity is not 

linked to the ecological outcomes of 

compensatory mitigation projects. 

Under the Council on Environmental 

Quality’s regulations for implementing 

the National Environmental Policy Act, 

mitigation can be used to reduce project 

impacts so that they are not significant 

(see 40 CFR 1501.6(c)). 

A couple commenters recommended 

that an economic analysis be performed 

to evaluate the economic effects of the 

proposed changes to this general 

condition, to assess the costs of the 

additional time and resources needed to 

overhaul stream credit programs, 

evaluate losses to mitigation providers 

and contractors, and the capacity to 

determine if the Corps can reasonably 

implement the proposed changes. 

The changes to this general condition 

do not require an overhaul of stream 

credit programs. Compensatory 

mitigation credits, including stream 

credits, can be quantified in acres, linear 

feet, functional assessment units, or 

other suitable metrics of particular 

resource types (see 33 CFR 332.8(o)(1)). 

The preamble to the 2008 mitigation 

rule states that district engineers retain 

the discretion to quantify stream 

impacts and required compensatory 

mitigation in terms of area or other 

appropriate units of measure (see 73 FR 

19633). This discretion also applies to 

the issuance of the NWPs by Corps 

Headquarters, to determine appropriate 

units of measure for efficient 

administration of the NWP program. 

Existing inventories of stream credits 

can be used to provide compensatory 

mitigation for losses of stream bed 

authorized by these NWPs. For those 

current inventories of stream credits 

quantified in linear feet or other linear 

metrics, the permittee and mitigation 

provider can engage in discussions to 

determine how many linear feet of 

stream credits are roughly proportional 

to the area of stream bed filled or 

excavated as a result of an activity 

authorized by an NWP. Each mitigation 

bank and in-lieu fee project has an 

approved mitigation plan, and that 

mitigation plan can be used to estimate 

how many linear feet of stream credits 

might be used to offset a specified 

number of acres or square feet filled or 

excavated as a result of an NWP activity. 

Over the years, there have been 

numerous changes to the Corps 

Regulatory Program, and each of those 

changes require some adjustment by 

Corps personnel, permit applicants, 

consultants, contractors, mitigation 

providers, and other people. 

One commenter recommended NWPs 

and/or regional conditions authorizing 

the use of compensatory mitigation, 

mitigation banks, and/or in-lieu fee 

programs be withdrawn. One 

commenter said that this general 

condition should be modified to state 

that out-of-kind mitigation is prohibited 

for losses of designated critical resource 

waters identified in general condition 

22. 

Division engineers can add regional 

conditions to the NWPs to establish 

lower thresholds for stream 

compensatory mitigation, and for the 

use of mitigation banks, in-lieu fee 

programs, and permittee-responsible 

mitigation for activities authorized by 

NWPs. Out-of-kind mitigation may be 

beneficial to designated critical resource 

waters. Therefore, the Corps declines to 

make the recommended change to 

general conditions 22 or 23. 

Several commenters said that this 

general condition should be modified to 

require applicants to take all practicable 

steps to avoid and minimize effects to 

waters of the United States. One 

commenter stated that avoidance and 

minimization of waters of the United 

States during the planning and siting 

phases of project development are not 

appreciated or considered by regulatory 

agencies. 

Paragraph (a) of general condition 23 

already 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). A description of the mitigation 

measures being undertaken by the 

project proponent, including avoidance 

and minimization on the project site, in 

the PCN can assist the district engineer 

in his or her decision whether the 

proposed activity qualifies for NWP 

authorization. 

One commenter expressed support for 

allowing the district engineer to waive 

compensatory mitigation requirements 

for wetland losses if she or he makes an 

activity-specific determination that 

other forms of mitigation would be 

environmentally preferable. One 

commenter requested the Corps 

identify, at a national level, the 

minimum amount of compensatory 

mitigation required to offset resource 

losses. Several commenters said that 

compensatory mitigation should be 

required consistently for all NWPs with 

areal and linear thresholds. 

The Corps has retained the ability of 

district engineers to waive 

compensatory mitigation requirements 

for wetland losses when they determine 

that the proposed activity, without 

wetland compensatory mitigation, will 

result in no more than minimal 

individual and cumulative adverse 

environmental effect. Compensatory 

mitigation decisions are made on a caseby-case basis by district engineers, so it 

would be inappropriate to establish 

national minimums for compensatory 

mitigation requirements, or for all NWPs 

that have quantitative limits. 

One commenter stated that paragraph 

(c) should be modified to allow for 

protection, restoration, or enhancement 

of areas next to wetlands as 

compensatory mitigation, similar to the 

proposed language in paragraph (d). A 

couple of commenters said that a onefor-one impact-to-compensation ratio 

only works if all compensatory 

mitigation efforts are successfully 

implemented and the Corps monitors 

and enforces compensatory mitigation 

requirements. These commenters 

recommended modifying this general 

condition to clarify how the ecological 

outcomes of compensatory mitigation 

projects would be improved and how 

the Corps would ensure that no-net-loss 

of aquatic resources is achieved. 

The Corps’ compensatory mitigation 

regulations at 33 CFR 332.3(i) allow 

district engineers to require the 

restoration, establishment, 

enhancement, and preservation, as well 

as the maintenance, of riparian areas 

and/or buffers around aquatic resources 

where necessary to ensure the long-term 

viability of those resources. This 

provision also applies to all types of DA 

permits, including the NWPs. There is 

no need to explicitly state this 

information in the text of the general 

condition. The Corps’ compensatory 

mitigation regulations requires 

monitoring of compensatory mitigation 

projects, and for district engineers to 

take action to ensure that compensatory 

2830 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

mitigation projects achieve their 

objectives and offset the losses of waters 

of the United States. Adaptive 

management may be required to ensure 

that those compensatory mitigation 

objectives are met. The ecological 

outcomes of compensatory mitigation 

projects are more appropriately 

addressed on a case-by-case basis, 

through compliance efforts by district 

engineers. 

A couple commenters supported the 

continued use of a 1⁄10-acre threshold for 

requiring compensatory mitigation and 

said that the threshold has been 

effective in encouraging avoidance and 

minimization of adverse effects to 

wetlands. Several commenters said that 

a one-for-one impact-to-compensation 

ratio should be required to compensate 

for all wetland losses to ensure no-netloss, not just those losses that exceed 

1⁄10-acre. Several commenters remarked 

that the proposed 1⁄10-acre threshold to 

require compensatory mitigation for 

losses of wetlands and stream bed does 

not achieve a goal of no-net-loss of 

aquatic resources. One commenter said 

no-net-loss should not be applied to 

areas that have been previously and 

heavily modified. 

The Corps is retaining the 1⁄10-acre 

threshold for wetland compensatory 

mitigation in paragraph (c) of this 

general condition based on its 

experience administering the program. 

There is no requirement in Section 404 

or the Clean Water Act, the Corps’ 

regulations at 33 CFR parts 320 to 332, 

or the U.S. EPA’s 404(b)(1) Guidelines 

for no net loss of wetlands or other 

types of aquatic resources. For all DA 

permits, including the NWPs, 

compensatory mitigation requirements 

are determined on a case-by-case basis. 

Compensatory mitigation may be 

required by district engineers to ensure 

that an activity that requires 

authorization under section 404 of the 

Clean Water Act and/or sections 9 or 10 

of the Rivers and Harbors Act of 1899 

is not contrary to the public interest (see 

33 CFR 332.1(d)). Compensatory 

mitigation for unavoidable impacts may 

be required to ensure that an activity 

requiring a section 404 permit complies 

with the Section 404(b)(1) Guidelines 

(see 33 CFR 332.1(c)(3)). 

One commenter said that paragraph 

(c) of this general condition should be 

modified to allow mitigation bank 

credits to be used at a one-for-one ratio 

rather than performing a functional 

analysis. A commenter stated that 1⁄10thacre may be too restrictive of a 

compensatory mitigation threshold in 

some Corps districts or watersheds and 

compensatory mitigation may not be 

required to achieve no more than 

minimal adverse environmental effects 

for certain NWP activities. Another 

commenter suggested the applicant be 

required to provide documentation of 

credit availability or credit reservation if 

proposing to satisfy compensatory 

mitigation requirements with credits 

from a mitigation bank. One commenter 

said that this general condition should 

be modified to state that mitigation bank 

credits are preferred where practicable, 

and to elucidate that mitigation banks 

are not practicable in the State of 

Alaska. 

Paragraph (c) of this general condition 

does not require the use of a functional 

analysis to determine whether 

mitigation bank credits can be used to 

provide compensatory mitigation for an 

NWP activity. District engineers have 

the discretion to waive the 

compensatory mitigation requirement 

for losses of greater than 1⁄10-acre of 

wetlands, or to require another form of 

mitigation to ensure that the NWP 

activity results in no more than minimal 

individual and cumulative adverse 

environmental effects. If the district 

engineer determines that compensatory 

mitigation is required for a proposed 

NWP activity, the applicant can propose 

to use mitigation bank credits or in-lieu 

fee program credits to fulfill the 

compensatory mitigation requirement. 

The district engineer can require the 

applicant to provide a statement of 

credit availability, so that the applicant 

does not have to prepare a mitigation 

proposal for a permittee-responsible 

mitigation project. The framework for 

evaluating compensatory mitigation 

options, that is the use of mitigation 

bank credits, in-lieu fee program credits, 

or permittee-responsible mitigation, is 

provided in the Corps’ regulations at 33 

CFR 332.3(b). Mitigation banks can be 

practicable in the State of Alaska. 

One commenter requested 

clarification on PCN and compensatory 

mitigation requirements for NWP 

activities involving mechanized land 

clearing in forested wetlands for utility 

line rights-of-way since paragraph (i) of 

general condition 23 states that 

compensatory mitigation may be 

required for activities that convert a 

forested or scrub-shrub wetland to an 

herbaceous wetland. A commenter said 

that compensatory mitigation should be 

provided on-site or in the sub-basin 

where impacts occur. 

Consistent with paragraph (i) of this 

general condition, if a proposed NWP 

activity involves mechanized land 

clearing in a forested wetland, and it 

requires a PCN, the district engineer can 

require compensatory mitigation to 

ensure the proposed activity result in no 

more than minimal individual and 

cumulative adverse environmental 

effects. For an NWP activity that 

requires compensatory mitigation, the 

district engineer will determine whether 

on-site or off-site compensatory 

mitigation is required, and the 

appropriate geographic scale for 

consideration of off-site compensatory 

mitigation options. 

One commenter said that general 

condition 23 should clearly state 

whether compensatory mitigation 

would or would not be required for 

wetland and stream bed losses for NWP 

activities that do not require PCNs. One 

commenter recommended that 

compensatory mitigation be provided 

for all losses of wetland or stream bed 

that exceed 1⁄10-acre, not just those 

losses requiring PCNs. A few 

commenters stated that compensatory 

mitigation for wetland and stream bed 

losses should be required at ratios 

greater than one-for-one to account for 

temporal loss and the difficulty of 

replacing wetlands and stream bed, and 

to ensure that habitat is recovered at a 

greater degree than it is being lost. One 

commenter said that there is no basis for 

wetlands and streams to have the same 

1⁄10-acre compensatory mitigation 

threshold. 

For those NWP activities that do not 

require PCNs, compensatory mitigation 

is not required because the district 

engineer is not notified of those 

activities and cannot add permit 

conditions to the NWP authorization in 

accordance with 33 CFR 332.3(k). The 

district engineer determines the 

appropriate amount of compensatory 

mitigation in accordance with the 

Corps’ regulations at 33 CFR 332.3(f). As 

discussed below, in response to 

comments received on the proposed 

rule, the Corps is changing the threshold 

in paragraph (d) of this general 

condition from 1⁄10-acre to 3⁄100-acre. 

A few commenters stated that 

compensatory mitigation should only be 

required for the losses of jurisdictional 

wetlands and streams and compensatory 

mitigation should not be required for 

losses of ephemeral stream bed or losses 

of other non-jurisdictional waters. 

Several commenters said that 

compensatory mitigation should only be 

required for permanent impacts and that 

temporary impacts should not be 

counted in the 1⁄10-acre threshold. One 

commenter suggested that this general 

condition should be modified to clarify 

if the 1⁄10-acre threshold would be 

applied individually or cumulatively in 

cases where both stream bed and 

wetlands would be lost. Several 

commenters said the 1⁄10-acre threshold 

in paragraphs (c) and (d) should be 

applied cumulatively so that any 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2831 

combination of wetland and stream 

losses exceeding 1⁄10-acre would require 

compensatory mitigation. 

Since ephemeral streams are excluded 

from Clean Water Act jurisdiction, (see 

33 CFR 328.3(b)(3)), NWP authorization 

is not applicable to ephemeral streams. 

Compensatory mitigation is not required 

for losses of ephemeral stream bed, or 

for losses of any other non-jurisdictional 

waters. The 1⁄10-acre and 3⁄100-acre 

thresholds in paragraphs (c) and (d) of 

this general condition apply to losses of 

waters of the United States, as that term 

is defined in Section F of the NWPs 

(Definitions). These thresholds apply to 

single and complete projects authorized 

by the NWPs. 

Several commenters said it is 

important to maintain the Corps’ 

flexibility as proposed to allow district 

engineers to determine that other forms 

of mitigation are appropriate or to waive 

mitigation requirements for specific 

NWP activities. Several commenters 

objected to allowing district engineers to 

waive compensatory mitigation 

requirements. One commenter said that 

if federal agencies are not required to 

submit PCNs, those agencies would not 

have to provide compensatory 

mitigation for wetland or stream bed 

losses that exceed 1⁄10-acre because the 1⁄10-acre threshold proposed in 

paragraphs (c) and (d) only applies to 

NWP activities that require PCNs. 

Several commenters said that 

paragraphs (c) and (d) should be 

modified to state that advanced 

mitigation is preferred. 

The general condition retains 

flexibility for district engineers to 

determine the appropriate mitigation for 

a particular NWP activity to ensure that 

the activity causes no more than 

minimal individual and cumulative 

adverse environmental effects. After the 

district engineer reviews a PCN, he or 

she may determine that no mitigation is 

necessary for the proposed activity to be 

authorized by an NWP. For these 16 

final NWPs, federal agencies are 

subjected to the same PCN requirements 

as non-federal permittees. They are also 

subject to the mitigation requirements in 

this general condition. Advance 

compensatory mitigation can be used to 

satisfy compensatory mitigation 

requirements added to NWP 

authorizations by district engineers. 

One commenter voiced support for 

the addition of a 1⁄10-acre threshold for 

requiring compensatory mitigation for 

losses of stream beds that require preconstruction notification. Another 

commenter expressed support for the 

addition of a compensatory mitigation 

threshold for stream bed losses 

represented in either linear feet or acres. 

One commenter stated that 

compensatory mitigation for stream bed 

losses should result in net gains in area 

or functions. A few commenters said 

that headwater streams are 

fundamentally different and offer 

different services than non-tidal 

wetlands and therefore should not be 

regulated the same. Additionally, 

minimal adverse environmental effects 

are different for distinct aquatic 

resources. One commenter opposed the 

elimination of ‘‘other open waters’’ from 

paragraph (d) and said it would create 

uncertainty for when compensatory 

mitigation would be required for losses 

of other open waters. A couple 

commenters said that reducing 

compensatory mitigation requirements 

also reduces the incentive to minimize 

impacts. 

Stream compensatory mitigation 

projects are expected to result in 

increases in stream functions, since the 

purpose of compensatory mitigation is 

to offset unavoidable adverse impacts 

which remain after all appropriate and 

practicable avoidance and minimization 

has been achieved. Stream 

compensatory mitigation projects 

produce credits that represent the 

accrual or attainment of stream 

functions at a compensatory mitigation 

site, consistent with the definition of 

‘‘credit’’ in the Corps’ regulations at 33 

CFR 332.2. While headwater streams 

exhibit some differences in structure 

and function than downstream streams 

in a tributary network, when those 

headwater streams are considered 

waters of the United States, they are 

subjected to the same regulatory 

requirements as other waters of the 

United States. Headwater streams have 

no special status under the Clean Water 

Act or its implementing regulations, 

including the 404(b)(1) Guidelines 

issued by the U.S. EPA. The only 

streams that are special aquatic sites 

under the 404(b)(1) Guidelines are riffle 

and pool complexes (see subpart E of 40 

CFR part 230). When reviewing a PCN 

for a proposed activity that may cause 

the loss of headwater stream bed, the 

district engineer will consider the 

functions being performed by the 

headwater streams. The Corps proposed 

to redesignate paragraph (d) of the 2017 

general condition 23 as paragraph (e) of 

the 2021 general condition 23, so it did 

not propose to remove ‘‘other open 

waters’’ from the paragraph that 

discusses the use of riparian areas next 

to open waters as compensatory 

mitigation for NWP activities. The Corps 

did not propose to reduce any 

compensatory mitigation requirements. 

Several commenters stated the 1⁄10- 

acre stream compensatory mitigation 

threshold is too broad to apply 

nationally. One commenter 

recommended establishing thresholds 

for requiring compensatory mitigation 

for stream bed losses through regional 

conditions instead of general condition 

23 to account for the regional variability 

of streams across the United States. 

Several commenters stated that 

implementation of a 1⁄10-acre threshold 

for stream compensatory mitigation 

does not achieve a goal of no-net-loss of 

aquatic resources. A couple commenters 

said that paragraph (d) allows for 

incremental losses of stream bed, which 

is contrary to the Corps’ no-net-loss 

objective and is inconsistent with 

restoring habitat necessary to provide 

sustainable fish populations. One 

commenter stated that reductions in the 

amount of required mitigation to 

compensate for headwater stream losses 

would have large impacts on 

downstream waters, including large 

rivers. One commenter said that 

implementing a 1⁄10-acre threshold for 

requiring compensatory mitigation for 

stream bed losses would increase the 

regulatory burden on downstream 

applicants due to declining water 

quality. 

Since the NWPs authorize activities 

across the country, paragraph (d) of this 

general condition establishes a national 

threshold for stream compensatory 

mitigation, but there is flexibility in the 

general condition to allow district 

engineers to make activity-specific 

determinations on whether stream 

compensatory mitigation should be 

required for activities that result in the 

loss of stream bed. Division engineers 

can add regional conditions to the 

NWPs to establish a lower threshold for 

requiring stream compensatory 

mitigation. As discussed above, there is 

no requirement for no net loss of stream 

bed in the Clean Water Act or the Corps’ 

regulations for implementing the Clean 

Water Act. Previous versions of this 

general condition in prior NWP 

rulemakings did not have a threshold 

for compensatory mitigation for losses 

of stream bed. A stream compensatory 

mitigation threshold was added to this 

general condition to provide an 

additional mechanism to help ensure 

that activities authorized by the 10 

NWPs from which the 300 linear foot 

limit for losses of stream bed was 

removed result in no more than minimal 

individual and cumulative adverse 

environmental effects. Similar to the 

1⁄10-acre wetland compensatory 

mitigation threshold, this compensatory 

mitigation threshold for stream bed 

losses is expected to provide incentives 

for project proponents to design their 

2832 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

projects to minimize losses of stream 

bed, and help sustain downstream 

functions and water quality. 

One commenter said that stream 

compensatory mitigation should only be 

required for new impacts associated 

with the maintenance or replacement of 

previously authorized structures. 

Another commenter stated that given 

the difficulties to achieve successful 

stream mitigation, requiring 

compensatory mitigation for stream bed 

losses greater than 1⁄10-acre will be 

unrealistic in areas where permitteeresponsible mitigation is the only option 

available. A few commenters suggested 

that thresholds reflect what would be 

required to ensure activities result in 

only minimal adverse environmental 

effects. Many commenters said that the 

1⁄10-acre threshold for requiring 

compensatory mitigation for stream bed 

losses is too large for headwater streams. 

District engineers will determine on a 

case-by-case basis whether to require 

compensatory mitigation for losses of 

stream bed authorized by NWPs. When 

determining whether to require 

compensatory mitigation, the district 

engineer will also consider 

practicability, including whether 

permittee-responsible mitigation is 

likely to be ecologically successful in 

offsetting the permitted impacts. As 

discussed below, the Corps has changed 

the 1⁄10-acre threshold to 3⁄100-acre to 

account for stream size. 

One commenter said the 

compensatory mitigation requirement 

for losses of stream bed greater than 1⁄10- 

acre reduces the flexibility of the district 

engineer in making compensatory 

mitigation decisions. A few commenters 

objected to including a threshold for 

compensatory mitigation for the loss of 

stream bed, stating that it may result in 

unnecessary additional mitigation 

requirements and would not reduce 

burdens on the regulated public. Several 

commenters said the 1⁄10-acre threshold 

for compensatory mitigation for stream 

bed losses or the district engineer’s 

determination to waive compensatory 

mitigation requirements would 

individually and cumulatively would 

directly or indirectly result in more than 

minimal adverse environmental effects. 

The text of this general condition is 

written to provide district engineers 

with substantial flexibility in 

determining whether compensatory 

mitigation is required for NWP activities 

and what the required compensatory 

mitigation should be for a particular 

NWP activity. Corps districts have been 

requiring stream compensatory 

mitigation for a number of years, so the 

changes to this general condition will 

not impose additional burdens on the 

regulated public. If the district engineer 

determines, after reviewing a PCN, that 

stream compensatory mitigation is not 

necessary to ensure that the NWP 

activity result in no more than minimal 

adverse environmental effects, he or she 

will not require stream compensatory 

mitigation for that activity. 

Many commenters suggested 

requiring compensatory mitigation for 

stream bed losses of 300 linear feet or 

more instead of the proposed 1⁄10-acre 

threshold. One commenter said that a 

linear foot threshold is more appropriate 

than acreage and recommended revising 

paragraph (d) to require compensatory 

mitigation for stream bed losses greater 

than 100 linear feet. One commenter 

recommended revising paragraph (d) to 

require compensatory mitigation for 

stream bed losses greater than 150 linear 

feet. One commenter recommended 

changing paragraph (d) to require 

compensatory mitigation for stream bed 

losses of 1⁄10-acre or 300 linear feet. 

Many commenters said that the 

proposed 1⁄10-acre stream mitigation 

threshold would result in more impacts 

with less compensatory mitigation being 

required. One commenter suggested 

using a scaled approach for establishing 

a stream compensatory mitigation 

threshold, such as a length threshold of 

five times the bankfull width or five 

times the width between ordinary high 

water marks. This commenter said a 

scaled approach would better account 

for variations in headwater streams and 

large rivers, compared to a 1⁄10-acre 

threshold. 

After evaluating the comments 

received in response to the proposed 

modification of general condition 23, 

the Corps is changing the threshold for 

stream compensatory mitigation in 

paragraph (d) from 1⁄10-acre to 3⁄100-acre. 

This is consistent with the stream 

compensatory mitigation threshold 

established in some Corps districts 

under the 2017 NWPs and the 

compensatory mitigation threshold 

recommended by several commenters. 

For the 2017 NWPs, a number of Corps 

districts have regional conditions 

requiring compensatory mitigation for 

losses of greater than 300 linear feet of 

stream bed. This is consistent with the 

recommendation for a 300 linear foot 

threshold made by many commenters in 

response to this proposed rule. The 

3⁄100-acre threshold in paragraph (d) was 

calculated by estimating the average 

width of stream fills (4 feet) authorized 

by the 2017 NWPs under the 10 NWPs 

and multiplying that figure by 300 

linear feet. The average width of stream 

filling or excavation was calculated 

from ORM2 data for NWP verifications 

issued between March 19, 2017, and 

March 19, 2019, for those NWP 

verifications where the average width of 

the stream fill or excavation was 

recorded by Corps district staff. The 

3⁄100-acre threshold is anticipated to 

result in similar stream compensatory 

mitigation requirements for the NWPs in 

this final rule compared to the 2017 

NWPs, and therefore is generally 

consistent with current agency practice. 

A scaled approach for establishing a 

stream compensatory mitigation 

threshold would add another level of 

complexity to a permit program that is 

intended to regulate, with little delay or 

paperwork, activities that result in 

minimal adverse environmental effects. 

A few commenters said the 1⁄10-acre 

threshold for stream losses requiring 

compensatory mitigation is not 

scientifically supported or lacks 

supporting analysis. A couple 

commenters said they do not agree with 

the change in threshold from linear feet 

of impact to acres for requiring 

compensatory mitigation for losses of 

stream beds that require PCNs. A few 

commenters stated that the use of 

stream length rather than acreage has 

been used in many programs as a basis 

for determining mitigation credits to 

compensate for the loss of stream bed, 

and that the 1⁄10-acre threshold would 

create uncertainty and additional costs 

for applicants, the public, mitigation 

banks, and in-lieu fee programs. One 

commenter said that if the threshold for 

requiring stream compensatory 

mitigation is going to be changed from 

linear feet to acres, the acreage should 

include all of the affected area on the 

valley bottom, not just the area between 

ordinary high water marks of a river or 

stream. 

The establishment of the 3⁄100-acre 

threshold for stream compensatory 

mitigation for NWP activities is an 

administrative decision to facilitate 

consistent implementation across 

districts. It is intended to be a 

conservative threshold based on the 

complexities of riverine systems, the 

substantial variation in riverine systems 

across the country, and the subjectivity 

inherent in the threshold for the NWPs 

(i.e., no more than minimal individual 

and cumulative adverse environmental 

effects). The use of acres to quantify 

stream compensatory mitigation is 

consistent with the Corps’ 

compensatory mitigation regulations at 

33 CFR 332.8(o)(1), which does not 

mandate the use of a particular metric 

for quantifying stream compensatory 

mitigation credits. It would be 

inappropriate to use the area of a valley 

bottom, since the Corps only has 

jurisdiction over certain categories of 

waters and wetlands, and valley 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2833 

bottoms may consist of a substantial 

proportion of upland area or other 

features that are outside of the Corps’ 

jurisdiction. 

Several commenters said the change 

to an area-based approach would not 

provide accounting consistency and 

would result in dual accounting systems 

for credits and debits generated under 

both linear feet and acreage-based 

scenarios and it would create 

inconsistencies, and would create 

confusion over how to handle sold 

versus proposed credits. One 

commenter expressed concern that 

ecological values of mitigation credits 

would not carry over in the conversion 

from linear feet to acres, creating the 

potential for activities to result in more 

than minimal individual and 

cumulative adverse environmental 

effects. 

There is no requirement in the Corps’ 

regulations to quantify stream 

compensatory mitigation credits in 

linear feet. Compensatory mitigation 

credits, including stream credits, can be 

quantified in acres, linear feet, 

functional assessment units, or other 

suitable metrics of particular resource 

types (33 CFR 332.8(o)(1)). This final 

rule does not affect prior credit 

transactions for previously authorized 

NWP activities where the permittee 

secured stream compensatory mitigation 

credits from mitigation bank or in-lieu 

fee program sponsors. This final rule 

only applies to activities authorized by 

these NWP after they go into effect. The 

Corps acknowledges that a period of 

adjustment will be required, and that 

different agencies may require the use of 

different metrics to quantify losses of 

stream bed and stream compensatory 

mitigation credits. The ecological values 

of mitigation credits from the accrual or 

attainment of aquatic functions at a 

compensatory mitigation site (see the 

definition of ‘‘credit’’ at 33 CFR 332.2). 

Quantifying stream mitigation credits in 

acres or linear feet is a surrogate for the 

increases in stream functions expected 

to result from a stream compensatory 

mitigation project, when there is no 

method available to assess the specific 

functional gains through a rapid 

ecological assessment method or other 

method. 

The amount of compensatory 

mitigation required for an NWP activity 

has to be sufficient to replace lost 

aquatic resource functions (see 33 CFR 

332.3(f)(1)), and the mitigation provider 

can use his or her judgment or the 

approved mitigation plans to determine 

how many stream credits quantified in 

linear feet are needed to offset a 

particular acreage of stream bed that is 

filled or excavated as a result of an NWP 

activity. It is important to note that the 

mitigation industry provides a service to 

permittees, as an option to fulfill the 

compensatory mitigation requirements 

in NWP authorization and other forms 

of DA authorizations. The Corps is 

making these changes for administrative 

efficiency, to provide NWP 

authorization for more activities that 

result in no more than minimal 

individual and cumulative adverse 

effects. The 300 linear foot limit for 

losses of stream bed in the 2017 NWPs 

and prior NWPs required the Corps to 

process individual permits for activities 

that likely would have otherwise 

qualified for NWP authorization. In the 

2007 NWPs, general condition 23 was 

modified to state that district engineers 

could require stream compensatory 

mitigation for losses of stream bed, but 

there was no acreage threshold as there 

was for wetland losses. In paragraph (d) 

of this general condition, the Corps has 

established a 3⁄100-acre threshold for 

stream compensatory mitigation. 

District engineers can require 

compensatory mitigation for losses of 

less than 3⁄100-acre of stream bed, and 

they can require compensatory 

mitigation for losses of up to 1⁄2-acre of 

stream bed. 

One commenter said mitigation banks 

and in-lieu fee programs would be 

negatively affected because less 

compensatory mitigation would be 

required for the loss of stream beds. A 

few commenters said they have 

reservations about the implementation 

of a compensatory mitigation threshold 

for losses of stream bed and that there 

may not be bank or in-lieu fee program 

credits available. 

The removal of the 300 linear foot 

limit for losses of stream bed from 

NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, 

and 52 and the changes to this general 

condition will not result in less 

compensatory mitigation being required 

for losses of stream bed authorized by 

NWPs. By providing equivalent 

quantitative limits for all non-tidal 

jurisdictional waters and wetlands in 

these 10 NWPs (i.e., the 1⁄2-acre limit), 

there will likely be more NWP activities 

for which district engineers require 

compensatory mitigation. As discussed 

above, the Corps has changed the 

threshold from 1⁄10-acre to 3⁄100-acre to 

require stream compensatory mitigation 

that is more aligned with current 

practices and the recommendations of 

many commenters. The existing stream 

credits can be used for NWP activities, 

even though the authorized impacts will 

be quantified in acres. 

Several commenters supported the 

flexibility of the district engineer to 

allow other forms of mitigation as 

determined appropriate and to waive 

compensatory mitigation requirements 

after an activity specific determination 

that other forms of mitigation would be 

environmentally preferable. Several 

commenters said that increased impacts 

and allowing the district engineer to 

waive compensatory mitigation 

requirements would be 

counterproductive to the success of 

salmon recovery efforts, and therefore 

would not be protective of tribal treaty 

rights. Several commenters said the 

district engineer should be able to 

consider other site-specific activities 

required by other regulatory programs, 

such as mine site reclamation to 

considered as mitigation for activities 

affecting stream beds. One commenter 

stated that requiring a compensatory 

mitigation decision by the district 

engineer could delay issuance of a 

permit and to modify paragraph (d) to 

allow the district engineer or designee 

to waive the compensatory mitigation 

requirement. One commenter expressed 

concern that allowing the district 

engineer to waive compensatory 

mitigation requirements could allow for 

up to 1⁄2-acre of stream bed loss which 

would result in adverse environmental 

impacts. 

The removal of the 300 linear foot 

limit from the NWPs (while retaining 

the 1⁄2-acre limit, PCN process, and 

other tools to ensure no more than 

minimal adverse environmental effects) 

and the changes to general condition 23 

will allow district engineers to authorize 

certain activities by NWP and require 

compensatory mitigation when 

necessary. It will provide more 

flexibility in the NWP and allow district 

engineers to devote more staff and other 

resources to proposed activities that 

have the potential for more substantial 

adverse environmental effects. These 

changes will not impair salmon 

recovery efforts, and for those proposed 

NWP activities that the district engineer 

determines ‘‘may affect’’ listed salmon 

species, additional protection to those 

listed species will be provided through 

the ESA section 7 process. 

The flexibility in general condition 23 

allows district engineers to consider 

mitigation and other site-specific 

activities required by other agencies, 

such as mine reclamation, when 

determining whether to require 

compensatory mitigation for NWP 

activities. District engineers are required 

to make compensatory mitigation 

decisions within the 45-day review 

period for NWP PCNs. The district 

engineer has the decision-making 

authority for whether compensatory 

mitigation is required for an NWP 

activity. 

2834 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

One commenter said the Corps should 

develop clear expectations and 

performance standards for the types of 

other mitigation that could be utilized to 

compensate for stream bed losses. One 

commenter suggested modifying 

paragraph (d) to list acceptable 

alternatives to compensatory mitigation. 

One commenter expressed support for 

compensatory mitigation requirements 

could be fulfilled through restoration or 

enhancement of riparian areas next to 

streams. Several commenters said that 

riparian restoration or enhancement 

results in out-of-kind mitigation since 

they do not always replace lost stream 

functions. One commenter suggested the 

proposed paragraph (d) be modified to 

state that riparian restoration or 

enhancement may only satisfy 

compensatory mitigation requirements 

when other in-kind mitigation options 

are unavailable or are not practicable. 

Ecological performance standards for 

stream compensatory mitigation projects 

are determined by district engineers 

when they review and approve 

mitigation plans. Permit applicants may 

propose potential alternatives to 

compensatory to district engineers, who 

will determine whether that alternative 

mitigation is appropriate and likely to 

be effective in reducing adverse 

environmental effects so that it is not 

necessary to require compensatory 

mitigation. While the restoration or 

enhancement of riparian areas might not 

replace all stream functions, they can 

help improve some stream functions 

and help reduce nutrient and pollutant 

loads to streams. District engineers will 

determine on a case-by-case basis 

whether the restoration or enhancement 

of riparian areas is appropriate and 

practicable compensatory mitigation for 

an NWP activity. 

One commenter said that the general 

condition should be modified to require 

the applicant to provide project 

specifications addressing the Natural 

Stream Channel Design Techniques and 

Review Checklist, developed by the U.S. 

EPA and U.S. FWS. One commenter 

said there currently are no national or 

regional tools developed by the Corps to 

guide compensatory mitigation for 

stream bed losses. One commenter 

stated the Corps and U.S. EPA are 

currently collaborating on a peerreviewed study analyzing the 

environmental and policy consequences 

of stream restoration metrics. This 

commenter recommended not 

modifying the NWPs until they are 

scheduled to expire in 2022 to allow for 

the results of the study to be completed 

and the results to be considered. One 

commenter said general condition 23 

should be incorporated into every 

applicable NWP rather than referring to 

the loss of 300 linear feet in each NWP. 

District engineers evaluate stream 

compensatory mitigation proposals and 

should be provided the flexibility to 

consider a variety of potential stream 

restoration or rehabilitation approaches. 

This includes river and stream 

restoration approaches, such as dam 

removals, culvert replacements, and 

other process-based methods that may 

be more ecologically effective than 

natural channel design in improving 

stream functions (e.g., Palmer et al. 

2014). The Corps is removing the 300 

linear foot limit for losses of stream bed 

from 10 NWPs and modifying general 

condition 23 for more efficient 

administration of the NWP program. 

The study on stream metrics may have 

some utility in future rulemakings and 

the development of guidance, but it is 

not necessary to delay this rulemaking 

to wait for that study to be completed. 

General condition 23 applies to all 

NWPs. 

Several commenters supported the 

proposed changes to paragraph (e). 

Several commenters said that paragraph 

(e) of general condition 23 should be 

modified to eliminate the district 

engineer’s ability to allow riparian area 

compensatory mitigation for wetland 

losses. One commenter suggested 

modifying paragraph (e) to allow the 

planting of adapted seed mixes that may 

contain non-native species and to allow 

for the replacement of existing 

vegetation when restoring riparian 

areas. One commenter said the proposed 

condition should be modified to state 

that use of native vegetation is 

preferred, rather than required, and to 

allow for consideration of regionally 

appropriate vegetation. A few 

commenters expressed opposition to the 

proposed changes the changes to 

paragraph (e) and expressed concerns 

that allowing non-native species would 

result in negative environmental effects. 

One commenter said they were 

concerned that allowing non-native 

species in the restored areas could 

negate the prevention, control, and 

management of non-native species 

performed by other government 

agencies, non-government 

organizations, and citizens and could 

introduce a source for spread among 

those activities. 

The restoration and enhancement of 

riparian areas may be used to offset 

wetland losses as another form of 

mitigation that could be more 

environmentally appropriate, since 

riparian areas perform a number of 

functions that are also performed by 

wetlands (NRC 1995, NRC 2002). There 

may be a number of seed mixes that are 

acceptable for revegetating riparian 

areas. Paragraph (e) contains flexibility 

because it states that native species 

should be planted; it does not require 

native species to be planted. As 

discussed in the proposed rule, nonnative species can have positive, 

negative, or neutral effects on 

ecosystems and the functions they 

perform. Compensatory mitigation 

requirements, including long-term 

management activities, must be 

practicable (see 33 CFR 332.3(a)(1)). For 

a particular compensatory mitigation 

site, the district engineer may determine 

that the management of invasive or nonnative species is not practicable cause of 

site or watershed conditions, the degree 

to which the invasive or non-native 

species is established in the region, and 

other factors. If other government 

agencies and non-governmental 

organizations want to undertake efforts 

to control invasive or non-native 

species, they can do that under their 

authorities or mission statements. 

Several commenters said there is no 

support for allowing narrow riparian 

areas of 25–50 feet wide on each side of 

the stream that would support habitat 

needed by federally threatened or 

endangered salmon. Buffers of 100 feet 

or more are needed. One commenter 

said that riparian area restoration and 

enhancement requirements (e.g. 

minimum riparian width, historical and 

existing site conditions) should be 

addressed regionally rather than 

included in paragraph (e). One 

commenter said that restoring or 

enhancing riparian areas does not 

achieve no-net-loss of the stream bed. 

The recommended riparian area 

width of 25–50 feet was established in 

the NWP program in 2000 (65 FR 12833) 

because riparian areas of that width can 

provide important aquatic habitat 

functions and water quality benefits. 

The establishment of wider riparian 

areas for listed species be more 

appropriately addressed through the 

ESA section 7 consultation process. 

Division and district engineers can 

establish regional requirements for 

riparian areas. The purpose of restoring 

and enhancing riparian areas is to help 

improve stream functions and water 

quality. The improved functions are 

expected to occur in nearby stream bed 

and in downstream waters. 

One commenter recommended 

modifying paragraph (f)(4) of this 

general condition to state that if 

permittee-responsible mitigation is the 

proposed compensatory mitigation 

option, and the proposed compensatory 

mitigation site is located on land in 

which another federal agency holds an 

easement, the district engineer will 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2835 

coordinate with that federal agency to 

determine if proposed compensatory 

mitigation project is compatible with 

the terms of the easement. The Corps 

added the suggested text to paragraph 

(f)(4) of general condition 23. 

This general condition is adopted 

with the modifications discussed above. 

GC 24. Safety of Impoundment 

Structures. The Corps did not propose 

any changes to this general condition. 

One commenter recommended adding 

‘‘federal’’ to this general condition 

because some federal agencies may have 

established federal dam safety criteria. 

The Corps added ‘‘federal’’ to the text of 

this general condition so that district 

engineers can require non-federal 

applicants to demonstrate that the 

structures comply with established 

federal dam safety criteria. 

This general condition is adopted as 

with the modification discussed above. 

GC 25. Water Quality. The Corps 

proposed to modify this general 

condition to articulate that if the state, 

authorized tribe, or EPA (i.e., the 

certifying authority under section 401 of 

the Clean Water Act) issued a water 

quality certification (WQC) for the 

issuance of an NWP, and the permittee 

cannot comply with all of the 

conditions in that water quality 

certification, he or she must submit a 

certification request to the certifying 

authority that satisfies the requirements 

of 40 CFR 121.5(b) for a water quality 

certification or waiver for the activity 

involving a specific discharge to be 

authorized by the NWP. 

One commenter expressed general 

support for the proposed changes to 

general condition 25. Several 

commenters supported the proposed 

changes clarifying that applicants need 

to request certification from the 

certifying authority for specific 

discharges when he or she cannot 

comply with all of the conditions in the 

WQC for the NWP. One commenter said 

that general condition 25 should be 

clarified to state that WQCs must be 

consistent with 33 CFR 325.4 and 40 

CFR 121.7(d), and that any WQC 

condition not within the established 

scope of the certification, may not be 

included as a regional condition. 

The proposed changes have been 

incorporated into this general condition. 

The Corps has added text to this general 

condition to state that if the certifying 

authority issues a water quality 

certification for the proposed discharge 

authorized by a specific NWP activity, 

the permittee must submit a copy of the 

certification to the district engineer. 

Furthermore, the general condition 

states that if certification is required for 

a specific discharge, the discharge is not 

authorized by an NWP until the district 

engineer has notified the permittee that 

the water quality certification 

requirement has been satisfied. 

When water quality certification is 

required for a specific discharge 

authorized by an NWP, and the Corps 

has completed its review of the PCN and 

has determined that the activity is 

authorized by an NWP as long as water 

quality certification is issued or waived 

for that discharge, the district engineer 

will send a provisional notification to 

the permittee. The provisional 

notification will inform the project 

proponent that the activity will be 

authorized by an NWP once water 

quality certification for the proposed 

discharge is obtained or waived. If water 

quality certification is issued for the 

proposed discharge, the district 

engineer will conduct coordination that 

may be required under Section 401(a)(2) 

of the Clean Water Act. After that 

process, the district engineer will issue 

the NWP verification letter with the 

water quality certification. The district 

engineer may add conditions to the 

NWP authorization to ensure the 

authorized activity results in no more 

than minimal individual and 

cumulative adverse environmental 

effects. The district engineer will also 

add to the NWP authorization 

conditions in the water quality 

certification that are not waived 

pursuant to 40 CFR 121.9(b). 

The Corps divided the text of this 

general condition into three paragraphs 

to make the general condition easier to 

read. This general condition is adopted 

with the modifications discussed above. 

GC 26. Coastal Zone Management. 

The Corps proposed to modify this 

general condition to say that if the state 

issued a general Coastal Zone 

Management Act (CZMA) consistency 

concurrence for the NWP, and the 

permittee cannot comply with all 

conditions of that general concurrence, 

then he or she must obtain an 

individual CZMA consistency 

concurrence or presumption of 

concurrence from the state in order for 

the activity to be authorized by an NWP. 

Several commenters expressed 

support for the change, stating that it 

provided clarification of the consistency 

concurrence process and additional 

flexibility. The commenters further 

noted that the proposed language makes 

it clear that the permittee is expected to 

fully comply with all the conditions of 

the general concurrence or seek an 

individual CZMA consistency 

concurrence or presumption of 

concurrence from the state coastal 

program. 

To qualify for NWP authorization, the 

proposed activity must comply with all 

of the NWP’s terms and conditions (see 

33 CFR 330.1(c)). The Corps will 

consider unauthorized any activity 

requiring Corps authorization if that 

activity is under construction or 

completed and does not comply with all 

of the terms and conditions of an NWP. 

This includes any conditions added to 

the NWP authorization through a 

categorical or individual CZMA 

consistency concurrence. If the 

applicant cannot comply with all of the 

conditions in the general CZMA 

consistency concurrence, then in order 

to comply with the requirements of the 

CZMA, she or he would need to apply 

to the state for an individual CZMA 

consistency concurrence, or obtain a 

presumption of concurrence. The 

inability to comply with all conditions 

of a general CZMA consistency 

concurrence does not preclude the use 

of the NWP to authorize the permitted 

activities; such circumstances would be 

considered a denial without prejudice 

until the project proponent obtains an 

individual CZMA consistency 

concurrence or a presumption of 

concurrence. 

When CZMA consistency concurrence 

is required for a specific activity 

authorized by an NWP, and the Corps 

has completed its review of the PCN and 

has determined that the activity is 

authorized by an NWP as long as CZMA 

consistency concurrence is issued or a 

presumption of concurrence occurs for 

the activity, the district engineer will 

send a provisional notification to the 

permittee. The provisional notification 

will inform the project proponent that 

the activity will be authorized by an 

NWP once CZMA consistency 

concurrence for the proposed activity is 

obtained or a presumption of 

concurrence occurs. The district 

engineer may add conditions to the 

NWP authorization to ensure the 

authorized activity results in no more 

than minimal individual and 

cumulative adverse environmental 

effects. 

The general condition is adopted as 

proposed. 

GC 27. Regional and Case-By-Case 

Conditions. The Corps did not propose 

any changes to this general condition. 

No comments were received. The 

general condition is adopted as 

proposed. 

GC 28. Use of Multiple Nationwide 

Permits. The Corps proposed changes to 

this general condition to address the use 

of more than one NWP to authorize a 

single and complete project, when two 

of those NWPs have different acreage 

limits. The proposed changes were 

2836 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

intended to ensure that use of an NWP 

with a higher acreage limit could not 

circumvent the lower acreage limit for 

another NWP, when the two NWPs are 

combined to authorize a single and 

complete project. 

A few commenters expressed support 

for the change and said that it clarified 

language regarding the use of multiple 

NWPs for a single and complete project. 

Several commenters recommended 

making no changes to this general 

condition, and retaining the general 

condition language from the 2017 

NWPs. One commenter suggested that 

the NWP numbers used in the example 

in the text of the general condition 

should match the NWP numbers used in 

the example in the preamble to the 

proposed rule, specifically by using 

NWP 39 rather than NWP 29. One 

commenter said that no more than two 

NWPs should be used to authorize a 

single and complete project. One 

commenter stated that the use of 

multiple NWPs to authorize a single and 

complete project should not 

cumulatively exceed the threshold of 

the highest limit. 

In the example in the text of this 

general condition, the Corps has 

replaced NWP 29 with 39 to make the 

example clearer. Nationwide permit 29 

has a subdivision provision that adds an 

additional layer of complexity, so it 

would be simpler to use NWP 39 in the 

example since that NWP has no 

subdivision provision. There may 

circumstances in which more than three 

NWPs may be appropriate for 

authorizing a single and complete 

project. One commenter stated that the 

use of multiple NWPs to authorize a 

single and complete project should not 

cumulatively exceed the threshold of 

the highest limit. The general condition 

does limit the acreage loss of waters of 

the United States to the highest 

specified acreage limit, but it does not 

allow the acreage limit of an NWP with 

a lower acreage limit to be exceeded. 

One commenter stated that the 

proposed language would limit use of 

NWPs with no acreage limit, such as 

NWP 3 in combination with other 

NWPs, where it may be desirable to 

allow additional work beyond a 

specified acreage to occur as it would 

promote re-use and rehabilitation of 

existing structures rather than 

construction of new structures. One 

commenter recommended that the 

Corps provide clarification regarding 

how temporary and cumulative impacts 

would be addressed when more than 

one NWP is used to authorize a single 

and complete project. 

The text in paragraph (a) of this 

general condition will limit the use of 

NWPs with no acreage limits, as it has 

since this text was incorporated into 

this general condition in 2000 (47 FR 

12896). The general condition applies to 

losses of waters of the United States, as 

that term is defined in Section F of the 

NWPs. It does not include temporary 

impacts. Cumulative impacts are 

addressed separately during the district 

engineer’s review of the PCN, in 

accordance with paragraph 2 of Section 

D, District Engineer’s Decision. 

Several commenters stated that the 

Corps must prohibit the use of multiple 

NWPs and NWPs with other general or 

individual permits as the Corps is not 

assessing the cumulative impacts. A few 

commenters stated that the proposed 

change may result in a greater loss of 

waters, and expressed concern that 

allowing two NWPs with different 

specified acreage limits to be used 

would result in larger impacts than 

allowed by each individual NWP. A few 

commenters said that allowing the use 

of more than one NWP to authorize a 

single and complete project will result 

in more than minimal individual and 

cumulative adverse environmental 

effects. One commenter suggested that 

the Corps eliminate the use of multiple 

NWPs to authorize individual segments 

of linear projects. 

The Corps considers cumulative 

impacts when it evaluates PCNs for 

proposed NWP activities (see paragraph 

2 of Section D, District Engineer’s 

Decision). General condition 28 does 

not address the use of NWPs with 

individual permits; it only addresses the 

use of multiple NWPs to authorize a 

single and complete project. The use of 

NWPs with individual permits is 

addressed in the Corps’ NWP 

regulations at 33 CFR 330.6(d). The 

modification of this general condition is 

specifically intended to prohibit the 

circumvention of the specified acreage 

limits of the NWPs, so that the loss of 

waters of the United States under a 

particular NWP is not exceeded. 

Not allowing any deviation from the 

specified acreage limits of the NWPs 

used to authorize a single and complete 

project will help ensure that authorized 

activities will result in no more than 

minimal individual and cumulative 

adverse environmental effects. This 

general condition does not apply to the 

long-standing practice of allowing each 

separate and distant crossing of waters 

of the United States for a linear project 

to be considered a separate NWP 

authorization. This general condition 

does apply to circumstances where a 

linear project may involve two separate 

utility lines (e.g., an electric utility line 

authorized by NWP 57 and a water line 

authorized NWP 58) both cross a 

waterbody. In this situation, the 1⁄2-acre 

limit would apply to the cumulative 

loss of waters of the United States 

caused by the electric line and water 

line crossing of that waterbody. 

The general condition is adopted with 

the modifications discussed above. 

GC 29. Transfer of Nationwide Permit 

Verifications. The Corps did not 

propose any changes to this general 

condition. No comments were received. 

The general condition is adopted as 

proposed. 

GC 30. Compliance Certification. The 

Corps did not propose any changes to 

this NWP. No comments were received. 

The general condition is adopted as 

proposed. 

GC 31. Activities Affecting Structures 

or Works Built by the United States. The 

Corps proposed to modify this general 

condition to be consistent with the 

current Engineer Circular (EC) for 

processing requests to alter Corps Civil 

Works Projects pursuant to 33 U.S.C. 

408 (EC 1165–2–220, issued on 

September 10, 2018). Under the current 

EC, Corps districts are required to 

conduct section 10 and section 404 

permit evaluations and requests for 408 

permissions in a coordinated and 

concurrent manner. 

One commenter supported the 

proposed changes to this general 

condition. One commenter stated that a 

PCN should not be required for a 

Section 408 review or permission if the 

underlying NWP activity does not 

otherwise require a PCN. One 

commenter said that the proposed text 

raises concerns about timely processing 

of NWPs. 

Pre-construction notifications are 

required for proposed NWP activities 

that also require Section 408 

permissions so that the appropriate 

coordination can occur between district 

staff involved in the NWP authorization 

and Section 408 permission processes. 

The Corps acknowledges that it may 

take longer for NWP verification letters 

to be issued by the district engineer, 

because the NWP verification cannot be 

issued before the Section 408 

permission process is completed. 

The general condition is adopted as 

proposed. 

GC 32. Pre-Construction Notification. 

The Corps proposed several 

modifications to this general condition 

to provide consistency with proposed 

changes to the NWPs and to clarify preconstruction notification requirements. 

The Corps proposed to change 

paragraph (a)(2) of this general 

condition by removing the following 

sentence: ‘‘Also, work cannot begin 

under NWPs 21, 49, or 50 until the 

permittee has received written approval 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2837 

from the Corps.’’ This proposed change 

will conform to one of the changes we 

are proposing for these three NWPs, 

which is to remove the term requiring 

the permittee to obtain a written 

verification from the district engineer 

before commencing the regulated 

activities in waters of the United States. 

As discussed above, the Corps proposed 

to make NWPs 21, 49, and 50 consistent 

with the other NWPs that require preconstruction notification, where the 

project proponent can proceed with the 

authorized work if the district engineer 

does not respond to the PCN within 45 

days (see 33 CFR 330.1(e)(1)). 

Many commenters expressed concern 

with the 45-day clock and the default 

authorization of PCNs and questioned 

whether this was a sufficient review 

period. Many commenters stated that 

the Corps should hold districts 

accountable regarding when the 45-day 

PCN review period starts and limit 

information requests to a single request. 

These commenters further stated that 

some Corps districts make numerous 

information requests to reset the 45-day 

review period or request additional 

information not listed in the text of the 

general condition. One commenter 

suggested that the Corps provide more 

direction/guidance to districts on the 

ability to use sketches (rather than 

engineered drawings). A few 

commenters said that no additional 

information requirements should be 

added to the PCN process that would 

further complicate or burden the 

process. One commenter recommended 

that district engineer use their 

discretionary authority to expedite 

certain time-sensitive maintenance and 

inspection projects associated with key 

energy infrastructure projects. 

Forty-five days is sufficient time for 

district engineers to review PCNs and 

determine whether proposed activities 

qualify for NWP authorization or 

whether discretionary authority should 

be exercised to require individual 

permits. Exceptions to the 45-day 

review period when district engineers 

have to complete ESA section 7 

consultation, NHPH section 106 

consultations, or other required 

consultations. District engineers are 

supposed to make only one request for 

additional information to make PCNs 

complete. District engineers can make 

additional requests only when the 

project proponent has not submitted the 

requested information to the district 

engineer. A complete PCN only requires 

the information listed in general 

condition 32, plus the text of the NWP 

itself if the ‘‘Notification’’ provision 

includes additional information 

requirements. The sketches submitted 

with a PCN have to be sufficiently 

detailed to help a district engineer 

understand the proposed activity, but it 

does not have to be an engineering 

drawing or a comparably detailed 

drawing. The Corps has not added any 

more information requirements beyond 

what was proposed in the 2020 

Proposal. The Corps does not agree that 

general condition 32 should be modified 

to state that a district engineer has 

discretionary authority to expedite 

certain time-sensitive maintenance and 

inspection activities. District engineers 

already have the discretion to manage 

their workload. 

The Corps also proposed to modify 

paragraph (b)(4) of this general 

condition by dividing it into 

subparagraphs to clarify different 

requirements of a complete PCN: The 

description of the proposed NWP and 

associated information (subparagraph 

(b)(4)(i)); the quantities of anticipated 

losses of waters, wetlands, and other 

special aquatic sites for linear projects 

(subparagraph (b)(4)(ii)); and the 

inclusion of sketches with the PCN 

(subparagraph (b)(4)(iii)). In 

subparagraph (b)(4)(i), the Corps also 

proposed to add ‘‘(including the same 

NWP for activities that do not require 

PCNs)’’ after ‘‘any other NWP(s)’’ to 

clarify that the PCN must identify nonPCN NWPs that are used to authorize 

any part of the proposed project or 

related activity, including separate and 

distant crossings of waters and wetlands 

for linear projects. In subparagraph 

(b)(4)(ii), the Corps proposed to clarify 

the information requirements for linear 

projects, and state that these 

information requirements do not trigger 

a PCN requirement for those crossings 

authorized by an NWP that do not 

require PCNs. The Corps also proposed 

to modify this subparagraph to state that 

this information will be used by the 

district engineer to evaluate the 

cumulative adverse environmental 

effects of the proposed linear project. 

A few commenters expressed support 

for the proposed changes, particularly 

the clarification that a PCN must 

identify non-PCN NWPs used to 

authorize other aspects of projects, 

including linear projects. The Corps has 

incorporated the proposed changes into 

paragraph (b)(4). 

In the first sentence of paragraph 

(b)(5), the Corps proposed to remove the 

phrase ‘‘and perennial, intermittent, and 

ephemeral streams,’’ and replace it with 

‘‘streams.’’ If there are streams on the 

project site, then the PCN must include 

a delineation of those streams. In 

addition, the Corps proposed to modify 

paragraph (b)(5) to be consistent with its 

proposal to remove the 300 linear foot 

limit for losses of stream bed in NWPs 

21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, 

and rely on the 1⁄2-acre limit, PCN 

review process, and the ability of 

division and district engineers, based on 

regional or local conditions, to modify, 

suspend, or revoke NWP authorizations 

on a regional or case-by-case basis, 

respectively, to comply with the 

requirement that NWPs may only 

authorize those activities that have no 

more than minimal individual and 

cumulative adverse environmental 

effects. The delineation of streams on 

the project site will be used to calculate 

the area of stream bed is proposed to be 

filled or excavated and thus results in a 

loss of stream bed. The area of 

jurisdictional stream bed filled or 

excavated would be applied to the 1⁄2- 

acre limit for these NWPs, to determine 

whether the loss of stream bed plus the 

losses of any other non-tidal 

jurisdictional waters and wetlands 

exceeds the 1⁄2-acre limit. 

A few commenters stated that the 

Corps should add the word 

‘‘jurisdictional’’ to ‘‘streams’’ in 

paragraph (b)(5). One commenter 

recommended that the Corps clarify that 

paragraph (b)(5) only applies to 

jurisdictional waters. One commenter 

stated that the use of the word 

‘‘ephemeral’’ in paragraph (b)(5) is 

inconsistent with the Navigable Waters 

Protection Rule and recommended 

omitting the term from the general 

condition. One commenter opposed the 

addition of ‘‘streams’’ in paragraph 

(b)(6) and requiring PCNs for stream 

losses in excess of 1⁄10-acre, since the 

removal of the 300-foot limit only 

applies to 10 NWPs. 

The Corps declines to add the word 

‘‘jurisdictional’’ to modify the word 

‘‘stream’’ or other types of waters listed 

in paragraph (b)(5) because an approved 

jurisdictional determination is not 

required for an NWP PCN. If the project 

proponent did not obtain an approved 

jurisdictional determination for the 

project site prior to submitting the PCN, 

for the purposes of evaluating the PCN 

the district engineer will presume the 

wetlands, streams, and other waters on 

the project site are subject to Clean 

Water Act jurisdiction. The Corps has 

removed the word ‘‘ephemeral’’ from 

paragraph (b)(5). Paragraph (b)(6) does 

not impose any additional PCN 

requirements for losses of stream bed. 

The first sentence of paragraph (b)(6) 

has been revised as follows to 

incorporate the mitigation thresholds in 

general condition 23: ‘‘If the proposed 

activity will result in the loss of greater 

than 1⁄10-acre of wetlands or 3⁄100-acre of 

stream bed and a PCN is required, the 

prospective permittee must submit a 

2838 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

statement describing how the mitigation 

requirement will be satisfied, or 

explaining why the adverse 

environmental effects are no more than 

minimal and why compensatory 

mitigation should not be required.’’ 

The Corps proposed to modify 

paragraph (c) to state that the PCN 

should be submitted using Form ENG 

6082 that was approved earlier this year. 

Form ENG 6082 should be used instead 

of ENG 4345, which is the standard 

individual permit application form. 

Block 18 of Form ENG 6082 has a space 

for the project proponent to identify the 

specific NWP(s) she or he wants to use 

to authorize the proposed activity. 

Therefore, the Corps proposed to 

remove the text of paragraph (c) that 

stated that a completed ENG 4345 must 

clearly indicated that it is an NWP PCN 

and must include all of the information 

required by subparagraphs (b)(1) 

through (10) of this general condition. 

One commenter stated that paragraph 

(c), which references the use of ENG 

6082, should be altered to include 

allowance for states that have a joint 

application process. The ENG Form 

6082 has been approved for purposes of 

the Paperwork Reduction Act, but joint 

state-federal forms have not been 

approved. Therefore, the Corps declines 

to make this suggested change. 

Because of the proposal to remove the 

300 linear foot limit for losses of stream 

bed in NWPs 21, 29, 39, 40, 42, 43, 44, 

50, 51, and 52, as well as the associated 

waiver provision for losses of 

intermittent and ephemeral stream bed, 

the Corps proposed to modify paragraph 

(d)(2) of the agency coordination 

provisions of this general condition. The 

Corps proposed to remove the 

requirement for agency coordination for 

NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, 

and 52 activities that require preconstruction notification and will result 

in the loss of greater than 300 linear feet 

of stream bed. 

Several commenters objected to the 

removal of the agency coordination 

process with the removal of the 300 

linear foot limit for loss of stream bed. 

One commenter stated that removal of 

the agency coordination process 

resulting from the removal of PCN 

requirements may lead to the Corps 

being the only entity involved in the 

review of potential source water (i.e. 

drinking water) impacts. One 

commenter stated that the PCN 

requirement is a benefit for state agency 

coordination, which assists the 

applicant and regulatory agencies in 

permit streamlining. 

The Corps has removed the agency 

coordination provisions for waivers for 

losses of greater than 300 linear feet of 

intermittent or ephemeral stream bed for 

activities authorized by NWPs 21, 29, 

39, 40, 42, 43, 44, 50, 51, and 52. The 

NWPs do not require district engineers 

to coordinate proposed activities that 

may affect source waters or drinking 

water supplies. Pre-construction 

notifications are required for certain 

NWP activities, and coordination with 

state agencies is only required for 

specific activities identified in 

paragraph (d) of this general condition. 

This general condition is adopted 

with the modifications discussed above. 

I. Discussion of Proposed Modifications 

to Section D, District Engineer’s 

Decision 

In paragraph 1 of Section D, the Corps 

proposed to remove provisions that refer 

to potential waivers of the 300 linear 

foot limit for losses of stream bed 

authorized by NWPs 21, 29, 39, 40, 42, 

43, 44, 50, 51, and 52. The Corps 

proposed this change to be consistent 

with our proposal to remove the 300 

linear foot limit and the waiver 

provision from those NWPs. In the 

second sentence of paragraph 4, the 

Corps proposed to remove ‘‘or to 

evaluate PCNs for activities authorized 

by NWPs 21, 49, and 50’’ because we are 

proposing to remove the requirement 

that permittees obtain written 

verification from the district engineer 

before these activities are authorized. 

Pre-construction notifications for 

activities authorized by NWPs 21 and 50 

will be subject to the same timeframes 

as other NWP activities that require 

PCNs, because the Corps removed the 

provision from these NWPs that 

required the permittee to obtain written 

verification from the Corps before 

commencing the authorized activity. 

This includes the ability for the 

permittee to presume that her or his 

project qualifies for the NWP unless she 

or he is otherwise notified by the 

district engineer within a 45-day period 

(see 33 CFR 330.1(e)(1)), or Endangered 

Species Act Section 7 consultation and/ 

or National Historic Preservation Act 

Section 106 consultation needs to be 

completed for non-federal permittees to 

comply with the requirements of general 

conditions 18 and 20. 

One commenter said the Corps should 

only use functional assessments that 

have been developed, peer reviewed, 

and subject to public and stakeholder 

comment at the regional level, and that 

the Corps not unilaterally revise the 

tools or substitute alternative 

methodologies only when the Corps 

prefers. The Corps determines which 

functional assessments are appropriate 

for use in evaluating NWP PCNs and 

other applications for DA authorization. 

The Corps does not require functional 

assessments to be peer reviewed, but 

acknowledges that peer review can help 

improve functional assessments to 

better assess aquatic resource functions. 

The Corps has modified the first 

sentence of paragraph 3 of this section 

to be consistent with the wetland and 

stream mitigation thresholds in general 

condition 23. That sentence has been 

changed to read: ‘‘If the proposed 

activity requires a PCN and will result 

in the loss of greater than 1⁄10-acre of 

wetlands or 3⁄100-acre of stream bed, the 

prospective permittee should submit a 

mitigation proposal with the PCN.’’ 

J. Discussion of Proposed Modifications 

to Section F, Definitions 

In the 2020 Proposal, the Corps 

proposed changes to some of the NWP 

definitions and the Corps proposed to 

remove some definitions. Several 

commenters stated that the definitions 

in Section F should match the 

definitions used in the Navigable Waters 

Protection Rule and in other regulations. 

A few commenters suggested retaining 

the definitions for intermittent stream 

and ephemeral stream. One commenter 

suggested repeating all ‘‘geographic 

definitions’’ in the NWP definitions. 

One commenter requested definitions 

for levee, berm and dike. One 

commenter asked that the Corps 

differentiate between ‘‘top of bank,’’ 

‘‘ordinary high water mark’’ and 

‘‘bankfull elevation.’’ One commenter 

expressed concern with the proposed 

removal of definitions for ‘‘protected 

tribal resources,’’ ‘‘ephemeral streams’’ 

and ‘‘intermittent streams.’’ 

As discussed in the proposed rule, the 

Corps proposed to modify the 

definitions of ‘‘ordinary high water 

mark’’ and ‘‘perennial stream’’ to be 

consistent with the Navigable Waters 

Protection Rule at 33 CFR 328.3(c)(7) 

and 33 CFR 328.3(c)(8). The Corps is 

removing the definitions of intermittent 

stream and ephemeral stream because 

they are no longer used in the text of the 

NWPs. The Corps does not believe it is 

necessary to copy the entire definition 

of ‘‘waters of the United States’’ into the 

NWPs because that definition is 

available at 33 CFR 328.3. The Corps 

declines to add definitions of the terms 

‘‘levee,’’ ‘‘berm,’’ ‘‘dike,’’ and ‘‘top of 

bank.’’ The Corps does not see a need 

to differentiate or define the terms ‘‘top 

of bank’’ or ‘‘bankfull elevation’’ 

because those terms are not used in the 

NWPs. The definition of ‘‘protected 

tribal resources’’ has been removed 

because that phrase is no longer in the 

text of general condition 17, tribal 

rights. The term ‘‘protected tribal 

resources’’ continues to be applied 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2839 

through the Corps’ implementation of 

the 1998 Department of Defense 

American Indian and Alaska Native 

Policy. 

One commenter stated that unless a 

definition of ‘‘water of the United 

States’’ is included or referenced all 

waterbodies should be defined within 

the NWPs to avoid confusion. One 

commenter requested a definition of 

‘‘adjacent wetlands’’ that is consistent 

across all regulations. One commenter 

suggested adding a definition of ‘‘oil 

and gas pipeline.’’ One commenter 

supported retention of the definitions 

for ‘‘single and complete linear project,’’ 

‘‘single and complete non-linear 

project’’ and ‘‘independent utility.’’ One 

commenter suggested adding a 

definition of ‘‘stream’’ to differentiate 

between linear wetlands and streams for 

compensatory mitigation purposes. 

The phrase ‘‘waters of the United 

States’’ is defined at 33 CFR part 328.3. 

The term ‘‘adjacent wetlands’’ is defined 

at 33 CFR 328.3(c)(1)). The term ‘‘oil or 

natural gas pipeline’’ is defined in the 

text of NWP 12. The Corps declines to 

add a definition of ‘‘stream’’ because the 

NWPs include a definition of ‘‘stream 

bed.’ 

Best management practices (BMPs). 

The Corps did not propose any changes 

to this definition. The Corps did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Compensatory mitigation. The Corps 

did not propose any changes to this 

definition. The Corps did not receive 

any comments. The definition is 

adopted as proposed. 

Currently serviceable. The Corps did 

not propose any changes to this 

definition. One commenter stated that 

the proposed definition includes the 

unclear phrase ‘‘some maintenance’’ 

and requested clarification. The Corps 

declines to clarify the phrase ‘‘some 

maintenance’’ because it is subject to 

application on a case-by-case basis. 

The definition is adopted as 

proposed. 

Direct effects. The Corps did not 

propose any changes to this definition 

and did not receive any comments. The 

definition is adopted as proposed. 

Discharge. The Corps did not propose 

any changes to this definition. One 

commenter said that the proposed 

definition includes the word being 

defined in its definition and suggested 

edit of the definition replacing the word 

discharge in the definition with 

‘‘addition’’, ‘‘release’’, or ‘‘placement.’’ 

The Corps declines to make the 

suggested changes because the Corps 

regulates discharges of dredged or fill 

material and those terms are more 

comprehensively defined in 33 CFR 

323.2. 

The definition is adopted as 

proposed. 

Ecological reference. The Corps did 

not propose any changes to this 

definition. The Corps We did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Enhancement. The Corps did not 

propose any changes to this definition. 

The Corps We did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Ephemeral stream. The Corps 

proposed to remove the definition of 

‘‘ephemeral stream’’ in conjunction with 

the proposal to remove the 300 linear 

foot limit for losses of stream bed and 

the ability of district engineers to waive 

that 300 linear foot limit for losses of 

ephemeral stream bed on a case-by-case 

basis. It should also be noted that 

ephemeral features, including 

ephemeral streams, are excluded from 

the definition of ‘‘waters of the United 

States’’ at 33 CFR 328.3(b)(3). Section 

328.3 of the Corps’ regulations defines 

‘‘waters of the United States’’ for the 

purposes of the Clean Water Act. 

A few commenters stated that the 

definition of ‘‘ephemeral stream’’ 

should be retained given the importance 

of stream categorization in jurisdiction 

and thus whether an NWP is necessary. 

One commenter stated that the 

definition should be retained to 

differentiate ephemeral streams from 

intermittent and perennial streams. One 

commenter supported the removal of 

the definition given proposed 

elimination of the 300 linear foot limit 

from the NWPs and the exclusion of 

ephemeral streams from jurisdiction 

under the Navigable Waters Protection 

Rule. One commenter expressed 

opposition to the definition’s removal 

based on opposition to removal of the 

300 linear foot limit from the NWPs. 

One commenter stated that the term 

should be retained because a cumulative 

impacts analysis may include a 

determination of flow through 

ephemeral and intermittent streams. 

The Corps is removing this definition 

as proposed because, in accordance 

with the Navigable Waters Protection 

Rule, ephemeral features, including 

ephemeral streams, are categorically 

excluded from the definition of ‘‘waters 

of the United States’’ under the Clean 

Water Act (see 33 CFR 328.3(b)(3)). 

Establishment (creation). The Corps 

did not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

High Tide Line. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Historic property. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Independent utility. The Corps did 

not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Indirect effects. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Intermittent stream. The Corps 

proposed to remove the definition of 

‘‘intermittent stream,’’ in conjunction 

with the proposal to remove the 300 

linear foot limit for losses of stream bed 

which obviated the need to reference a 

waiver for losses of an intermittent 

stream bed. 

One commenter supported the 

removal of the definition given 

proposed elimination of the 300 linear 

foot limit from the NWPs and the 

exclusion of ephemeral streams from 

jurisdiction under the Navigable Waters 

Protection Rule. One commenter 

objected to the removal of the definition 

of intermittent streams since they are in 

the Navigable Waters Protection Rule. 

One commenter opposed the 

definition’s removal based on 

opposition to removal of the 300 linear 

foot limit from the NWPs. One 

commenter stated that the term should 

be retained because a cumulative 

impacts analysis may include a 

determination of flow through 

ephemeral and intermittent streams. 

The Corps is removing this definition 

as proposed because this term is no 

longer used in the text of the NWPs. 

Loss of waters of the United States. 

The Corps proposed to rearrange the 

sentences in this definition so that the 

sentence that defines the loss of stream 

bed is moved to become the second 

sentence of this definition. In addition, 

the Corps proposed to modify this 

sentence to state that the stream bed 

would have to be permanently adversely 

affected, to be consistent with the first 

sentence of this definition. For 

consistency with the proposal to remove 

the 300 linear foot limit for losses of 

stream bed from 21, 29, 39, 40, 42, 43, 

44, 51, and 52, and rely on the 1⁄2-acre 

limit and other tools to comply with the 

statutory requirement that the NWPs 

only authorize those activities that have 

2840 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

no more than minimal individual and 

cumulative adverse environmental 

effects, the Corps proposed to remove 

‘‘linear feet’’ from the third sentence of 

this definition. This would provide 

consistency among the various types of 

waters when applying the fourth 

sentence of this definition, which states 

that the acreage loss of waters of the 

United States is a threshold 

measurement of the impact to 

jurisdictional waters for determining 

whether a project may qualify for an 

NWP. 

One commenter stated that the Corps 

should not remove the words ‘‘linear 

feet’’ from the definition because of 

opposition to removing a method of 

calculating stream loss relative to 

compensatory mitigation. One 

commenter expressed support for the 

changes as it makes clear that loss is 

limited to stream beds permanently 

adversely impacted. One commenter 

said that removal of linear feet from the 

definition would result in more than 

minimal adverse environmental effects. 

One commenter stated that conversion 

of forested wetlands to other wetland 

types should be included in the 

definition of permanent adverse effects 

which is included in the ‘‘loss of waters 

of the United States’’ definition. 

The Corps has removed the 300 linear 

foot limit for losses of stream bed from 

NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, 

and 52. Therefore, the Corps is 

removing ‘‘linear feet’’ from this 

definition. The Corps declines to 

include the conversion of forested 

wetlands to other wetland types in the 

definition of ‘‘loss of waters of the 

United States’’ because those areas 

remain wetlands and they continue to 

provide wetland functions. 

This definition is adopted as 

proposed. 

Navigable waters. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Non-tidal wetland. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Open water. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Ordinary high water mark. The Corps 

proposed to modify this definition to be 

consistent with the definition in the 

Navigable Waters Protection Rule 

defining ‘‘waters of the United States’’ 

(see 33 CFR 328.3(c)(7)). One 

commenter said that the definition 

includes only a discussion of the stream 

bed and omits reference to the bank 

contrary to the definition in other Clean 

Water Act rules and regulations. The 

lateral extent of Clean Water Act 

jurisdiction ends at the ordinary high 

water mark, not the bank, if no adjacent 

wetlands are present. See 33 CFR 

328.4(c). 

The definition is adopted as 

proposed. 

Perennial stream. The Corps proposed 

to modify the definition of ‘‘perennial 

stream’’ to be consistent with the 

definition of ‘‘perennial’’ in the 

Navigable Waters Protection Rule 

defining ‘‘waters of the United States’’ 

(see 33 CFR 328.3(c)(8)). 

One commenter stated support for the 

proposed change because of the 

elimination of the 300 linear foot limit 

for losses of stream bed and changes 

made to the definition in the Navigable 

Waters Protection Rule. One commenter 

said that the previous definition was 

clearer in instances when perennial 

streams are diverted underground. One 

commenter stated that the definition 

does not match the definition in the 

Navigable Waters Protection Rule, and 

recommended changing the definition 

to match that definition. 

The Navigable Waters Protection Rule 

at 33 CFR 328.3(c)(8) defines the term 

‘‘perennial’’ not ‘‘perennial stream.’’ 

The Corps used the definition of 

‘‘perennial’’ at 33 CFR 328.3(c)(8) to 

modify the NWP definition of 

‘‘perennial steam.’’ 

The definition is adopted as 

proposed. 

Practicable. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Pre-construction notification. The 

Corps did not propose any changes to 

this definition. The Corps did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Preservation. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Protected tribal resources. Because of 

the proposed changes to NWP general 

condition 17, tribal rights, the Corps 

proposed to remove this definition from 

the NWPs since this term is not in the 

text of the proposed general condition. 

The term ‘‘protected tribal resources’’ 

does not appear elsewhere in the text of 

NWPs, general conditions, or 

definitions, or in Section D, ‘‘District 

Engineer’s Decision.’’ 

A few commenters opposed the 

removal of the definition because they 

opposed changing the text of general 

condition 17. A few commenters said 

that that removal of the definition and 

the change to general condition 17 will 

result in substantial impacts to tribal 

waters, treaty, trust and cultural 

resources. One commenter suggested 

adding the definition to general 

condition 17. 

The Corps is removing this definition 

as proposed because it is no longer used 

in the text of the NWPs or the general 

conditions. 

Re-establishment. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Rehabilitation. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Restoration. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Riffle and pool complex. The Corps 

did not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Riparian areas. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Shellfish seeding. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Single and complete linear project. 

The Corps did not propose any changes 

to this definition. 

Many commenters stated support for 

retaining the definition given 

longstanding presence in regulation, 

practice by the Corps and upholding in 

court cases. Several commenters stated 

that the definition violates the Clean 

Water Act Section 404(e) minimal 

impact limitation, the National 

Environmental Policy Act the 

Endangered Species Act and other 

statutes and regulations. A few 

commenters stated that the definition 

recognizes ‘‘that discharges of dredged 

or fill material along a utility line, with 

narrow crossings of separate and distant 

waters, will typically have minimal 

effects both on the individual waters 

crossed and cumulatively on 

watersheds.’’ One commenter supported 

continued use of the definition but said 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2841 

that it is vague and has led to 

inconsistent application among 

districts, particularly relative to 

multiple crossings of a single water with 

multiple channels. One commenter 

stated that the definition is 

inconsistently applied and should be 

revised to require or strongly promote 

the concept of ‘‘multiple’’ single and 

complete linear projects. One 

commenter requested clarification of the 

definition to allow a determination of 

permit requirements and compensatory 

mitigation by the permittee. 

The definition is consistent with the 

Corps’ regulations at 33 CFR 330.2(i), 

which was promulgated in 1991, and 

with long-standing practice for 

authorizing linear projects by NWP. 

This definition does not violate the 

Clean Water Act, the National 

Environmental Policy Act, or the 

Endangered Species Act. It is based on 

a regulation that was promulgated in 

accordance with the Administrative 

Procedure Act. District engineers have 

discretion in applying this definition, 

and in identifying separate and distant 

crossings of waters of the United States. 

Only the district engineer has the 

authority to require compensatory 

mitigation for activities authorized by 

NWPs. The permit applicant is 

responsible for submitting a mitigation 

plan to the district engineer for 

consideration. 

The definition is adopted as 

proposed. 

Single and complete non-linear 

project. The Corps did not propose any 

changes to this definition. The Corps 

did not receive any comments on the 

proposed definition. The definition is 

adopted as proposed. 

Stormwater management. The Corps 

did not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Stormwater management facilities. 

The Corps did not propose any changes 

to this definition. The Corps did not 

receive any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Stream bed. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Stream channelization. The Corps did 

not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Structure. The Corps did not propose 

any changes to this definition. One 

commenter suggested that the definition 

be altered to be consistent with language 

used in proposed new NWP C. 

Specifically, the commenter, proposes 

replacing the example of ‘‘power 

transmission line’’ with ‘‘utility line’’ so 

it includes other types of lines. The 

Corps declines to make the suggested 

change to this definition because it 

covers a wide variety of structures that 

may be authorized by NWPs. 

The definition is adopted as 

proposed. 

Tidal wetland. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Tribal lands. The Corps did not 

propose any changes to this definition. 

One commenter stated that the 

definition of tribal Lands used by the 

U.S. EPA and the Corps’ definition is 

different and suggested that they be 

revised to be consistent. This definition 

was adopted from the 1998 Department 

of Defense American Indian and Alaska 

Native Policy, so the Corps is retaining 

that definition. 

The definition is adopted as 

proposed. 

Tribal rights. The Corps did not 

propose any changes to this definition. 

The Corps did not receive any 

comments on the proposed definition. 

The definition is adopted as proposed. 

Vegetated shallows. The Corps did 

not propose any changes to this 

definition. The Corps did not receive 

any comments on the proposed 

definition. The definition is adopted as 

proposed. 

Waterbody. The Corps did not 

propose any changes to this definition. 

Several commenters said that the term 

‘‘waterbody’’ can be confused with 

‘‘water body,’’ which describes both 

jurisdictional and non-jurisdictional 

features, for example as used in the 

Navigable Waters Protection Rule. The 

commenter suggested deletion of 

‘‘waterbody’’ and instead use of ‘‘waters 

of the United States’’ to avoid 

confusion. One commenter 

recommended removal of the last 

sentence of this definition. The Corps 

declines to make the suggested changes, 

except for the removal of the last 

sentence, because this term is used 

through the NWPs. The definition of 

‘‘waters of the United States’’ at 33 CFR 

328.3 is used to identify waterbodies, 

including adjacent wetlands. 

The definition is adopted as 

proposed. 

III. Compliance With Relevant Statutes 

A. National Environmental Policy Act 

Compliance 

The Corps has prepared a decision 

document for each NWP. Each decision 

document contains an environmental 

assessment (EA) to fulfill the 

requirements of the National 

Environmental Policy Act (NEPA). The 

EA includes the public interest review 

described in 33 CFR part 320.4(b). The 

EA generally discusses the anticipated 

impacts the NWP will have on the 

human environment and the Corps’ 

public interest review factors. If a 

proposed NWP authorizes discharges of 

dredged or fill material into waters of 

the United States, the decision 

document also includes an analysis 

conducted pursuant to the Clean Water 

Act section 404(b)(1), in particular 40 

CFR part 230.7. These decision 

documents evaluate, from a national 

perspective, the environmental effects of 

each NWP. 

The final decision document for each 

NWP is available on the internet at: 

www.regulations.gov (docket ID number 

COE–2020–0002) as Supporting and 

Related Materials for this final rule. 

Before the 2021 NWPs go into effect, 

division engineers will issue 

supplemental documents to evaluate 

environmental effects on a regional 

basis (e.g., a state or Corps district) and 

to determine whether regional 

conditions are necessary to ensure that 

the NWPs will result in no more than 

minimal individual and cumulative 

adverse environmental effects on a 

regional basis. The supplemental 

documents are prepared by Corps 

districts, but must be approved and 

issued by the appropriate division 

engineer, since the NWP regulations at 

33 CFR 330.5(c) state that the division 

engineer has the authority to modify, 

suspend, or revoke NWP authorizations 

in a specific geographic area within his 

or her division. For some Corps 

districts, their geographic area of 

responsibility covers an entire state. For 

other Corps districts, their geographic 

area of responsibility may be based on 

watershed boundaries. For some states, 

there may be more than one Corps 

district responsible for implementing 

the Corps regulatory program, including 

the NWP program. In states with more 

than one Corps district, there is a lead 

Corps district responsible for preparing 

the supplemental decision documents 

for all of the NWPs. The supplemental 

decision documents will also discuss 

regional conditions imposed by division 

engineers to protect the aquatic 

environment and other public interest 

review factors and ensure that any 

2842 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

adverse environmental effects resulting 

from NWP activities in that region will 

be no more than minimal, individually 

and cumulatively. 

The Corps solicited comments on the 

draft national decision documents, and 

any comments received were considered 

when preparing the final decision 

documents for the NWPs. 

Before the final NWPs go into effect, 

division engineers will issue 

supplemental documents to evaluate 

environmental effects on a regional 

basis (e.g., state or Corps district). The 

supplemental documents are prepared 

by Corps districts, but must be approved 

and formally issued by the appropriate 

division engineer, since the NWP 

regulations at 33 CFR 330.5(c) state that 

the division engineer has the authority 

to modify, suspend, or revoke NWP 

authorizations for any specific 

geographic area within his or her 

division. For some Corps districts, their 

geographic area of responsibility covers 

an entire state. For other states, there is 

more than one Corps district responsible 

for implementing the Corps Regulatory 

Program, including the NWP program. 

In those states, there is a lead Corps 

district responsible for preparing the 

supplemental documents for all of the 

NWPs. The supplemental documents 

will discuss regional conditions 

imposed by division engineers to 

protect the aquatic environment and 

ensure that any adverse environmental 

effects resulting from NWP activities in 

that region will be no more than 

minimal, individually and 

cumulatively. 

For the NWPs, the assessment of 

cumulative effects under the Corps’ 

public interest review occurs at three 

levels: National, regional, and the 

verification stage. Each national NWP 

decision document includes a nationalscale cumulative effects analysis under 

the Corps’ public interest review. Each 

supplemental document has a 

cumulative effects analysis under the 

Corps’ public interest review conducted 

for a region, which is usually a state or 

Corps district. When a district engineer 

issues a verification letter in response to 

a PCN or a voluntary request for a NWP 

verification, the district engineer 

prepares a brief decision document. 

That decision document explains 

whether the proposed NWP activity, 

after considering permit conditions such 

as mitigation requirements, will result 

in no more than minimal individual and 

cumulative adverse environmental 

effects. 

If the NWP is not suspended or 

revoked in a state or a Corps district, the 

supplemental document includes a 

certification that the use of the NWP in 

that district, with any applicable 

regional conditions, will result in no 

more than minimal cumulative adverse 

environmental effects. 

After the NWPs are issued or reissued 

and go into effect, district engineers will 

monitor the use of these NWPs on a 

regional basis (e.g., within a watershed, 

county, state, Corps district or other 

appropriate geographic area), to ensure 

that the use of a particular NWP is not 

resulting in more than minimal 

cumulative adverse environmental 

effects. The Corps staff that evaluate 

NWP PCNs that are required by the text 

of the NWP or by NWP general 

conditions or regional conditions 

imposed by division engineers, or 

voluntarily submitted to the Corps 

district by project proponents to receive 

written NWP verifications, often work 

in a particular geographic area and have 

an understanding of the activities that 

have been authorized by NWPs, regional 

general permits, and individual permits 

over time, as well as the current 

environmental setting for that 

geographic area. If the Corps district 

staff believe that the use of an NWP in 

that geographic region may be 

approaching a threshold above which 

the cumulative adverse environmental 

effects for that category of activities may 

be more than minimal, the district 

engineer may either make a 

recommendation to the division 

engineer to modify, suspend, or revoke 

the NWP authorization in that 

geographic region in accordance with 

the procedures in 33 CFR 330.5(c). 

Alternatively, under the procedures at 

33 CFR 330.5(d), the district engineer 

may also modify, suspend, or revoke 

NWP authorizations on a case-by-case 

basis to ensure that the NWP does not 

authorize activities that result in more 

than minimal cumulative adverse 

environmental effects. 

A few commenters said that the 

Council on Environmental Quality’s 

amended NEPA regulations are 

currently being litigated, and that the 

Corps should continue to apply the 

1978 regulations. Several commenters 

stated that an environmental assessment 

would conclude that a finding of no 

significant impact cannot be achieved 

for the NWPs, and therefore, an 

environmental impact statement must 

be prepared for the issuance of the 

NWPs. Several commenters said that a 

reasonable range of actual alternatives 

must be evaluated, including a no action 

alternative, for each NWP. A few 

commenters said because NWPs are in 

effect for five years, the Corps should 

include reasonably foreseeable future 

actions. A few commenters stated the 

Corps decision documents fail to take a 

‘‘hard look’’ at direct, indirect, and 

cumulative analysis required by NEPA, 

and that the Corps decision documents 

fail to consider or analyze relevant 

factors necessary to determine 

significance. 

The Corps prepared NEPA 

components of the draft and final 

national decision documents in 

accordance with the Council on 

Environmental Quality’s current NEPA 

regulations, published in the Federal 

Register on July 16, 2020 (85 FR 43304). 

The commenters objecting to the 

preparation of environmental 

assessments for the issuance of the 

NWPs do not provide any substantive 

information backing their claims that 

the issuance of the NWPs requires an 

environmental impact statement. The 

national decision document prepared 

for each NWP issued by this final rule 

discusses alternatives, consistent with 

CEQ’s current NEPA regulations at 40 

CFR 1501.5(c). The national decision 

documents examine the effects and 

impacts of the proposed action (i.e., the 

issuance of the NWP by Corps 

Headquarters) consistent with the 

definition of ‘‘effects or impacts’’ at 40 

CFR 1508.1(g). 

A few commenters said the decision 

documents somehow imply that the 

NWPs provide site-specific NEPA 

analysis, but that the Corps does not 

undertake any NEPA analysis at a 

project-specific level. One commenter 

stated that the Corps cannot defer its 

NEPA obligations to consider mitigation 

measures, public comments, or 

alternatives analysis to the regional or 

project level review because there is no 

guarantee any further NEPA analysis 

would occur. Several commenters said 

the national decision documents do not 

provide an a NEPA-level cumulative 

effects analysis, and that the Corps 

cannot defer the analysis at a later stage 

of review. 

The Corps did not defer any of its 

NEPA obligations during the 

preparation of the national decision 

documents for these NWPs. No further 

NEPA analysis is required for specific 

activities authorized by NWPs because 

the Corps fulfills the requirements of 

NEPA when it prepares an 

environmental assessment with a 

finding of no significant impact for each 

NWP’s national decision document, to 

inform the decision whether to issue or 

reissue that NWP. The 2020 CEQ NEPA 

regulations altered how cumulative 

effects are considered under NEPA (see 

the definition of ‘‘effects or impacts’’ at 

40 CFR 1508.1(g)). The Corps 

considered the effects of the proposed 

action in its national decision 

documents. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2843 

One commenter requested 

information on what type of NEPA 

assessment has been completed to 

determine the effects on aquatic 

resources as a result of the proposed 

changes, and what type of studies have 

been performed to show these changes 

will not result in more than minimal 

effects. One commenter stated the 

national decision documents do not 

provide a list of agencies or persons 

consulted in the development of the 

environmental assessment. One 

commenter said the national decision 

documents do not include tribal 

interests or treaty responsibilities. 

The Corps’ NEPA assessment is 

provided in the national decision 

document for each NWP. Further, the 

Corps considered public comments 

received on the 2020 Proposal and on 

the draft national decision documents. 

Tribal interests and treaty 

responsibilities are more appropriately 

addressed through consultations 

between Corps districts and tribes on 

matters related to the NWP program and 

its implementation. 

B. Compliance With Section 404(e) of 

the Clean Water Act 

The NWPs are issued in accordance 

with Section 404(e) of the Clean Water 

Act and 33 CFR part 330. These NWPs 

authorize categories of activities that are 

similar in nature. The ‘‘similar in 

nature’’ requirement does not mean that 

activities authorized by an NWP must 

be identical to each other. We believe 

that the ‘‘categories of activities that are 

similar in nature’’ requirement in Clean 

Water Act section 404(e) is to be 

interpreted broadly, for practical 

implementation of this general permit 

program. 

Nationwide permits, as well as other 

general permits, are intended to reduce 

administrative burdens on the Corps 

and the regulated public while 

maintaining environmental protection, 

by efficiently authorizing activities that 

have no more than minimal adverse 

environmental effects, consistent with 

Congressional intent expressed in the 

1977 amendments to the Federal Water 

Pollution Control Act. The NWPs 

provide incentives for project 

proponents to minimize impacts to 

jurisdictional waters and wetlands to 

qualify for NWP authorization instead of 

having to apply for individual permits. 

Keeping the number of NWPs 

manageable is a key component for 

making the NWPs protective of the 

environment and streamlining the 

authorization process for those general 

categories of activities that have no 

more than minimal individual and 

cumulative adverse environmental 

effects. 

The various terms and conditions of 

these NWPs, including the NWP 

regulations at 33 CFR 330.1(d) and 

330.4(e), allow district engineers to 

exercise discretionary authority to 

modify, suspend, or revoke NWP 

authorizations or to require individual 

permits, and ensure compliance with 

section 404(e) of the Clean Water Act. 

For each NWP that may authorize 

discharges of dredged or fill material 

into waters of the United States, the 

national decision documents prepared 

by Corps Headquarters include a 

404(b)(1) Guidelines analysis. The 

supplemental documents prepared by 

division engineers will discuss regional 

circumstances to augment the 404(b)(1) 

Guidelines analyses in the national 

decision documents. These 404(b)(1) 

Guidelines analyses are conducted in 

accordance with 40 CFR part 230.7. 

The 404(b)(1) Guidelines analyses in 

the national decision documents also 

include cumulative effects analyses 

done in accordance with 40 CFR 

230.7(b) and 230.11(g). A 404(b)(1) 

Guidelines cumulative effects analysis 

is provided in addition to the NEPA 

cumulative effects analysis because the 

implementing regulations for NEPA and 

the 404(b)(1) Guidelines define 

‘‘cumulative impacts’’ or ‘‘cumulative 

effects’’ differently. 

C. 2020 Revisions to the Definition of 

‘‘Waters of the United States’’ (i.e., the 

Navigable Waters Protection Rule) 

Corps general permits are not 

intended to make or imply a conclusion 

or determination regarding what water 

bodies are or are not subject to CWA 

jurisdiction. Instead, a Corps general 

permit merely states that, if a person 

complies with all of the terms and 

conditions of the general permit, that 

person’s proposed discharges of dredged 

or fill material into the waterbody will 

be consistent with the CWA, on the 

ground that any such discharges either 

(1) are legally authorized under the 

CWA (to the extent that the waterbody 

is subject to CWA jurisdiction) or (2) are 

otherwise consistent with the CWA to 

the extent that the waterbody is not 

jurisdictional under the CWA. The 

Corps acknowledges that some members 

of the public may seek to comply with 

the conditions of a general permit even 

for water bodies that are not 

jurisdictional or may not be 

jurisdictional under the CWA. Such 

practice, though not required, is not 

unlawful. The Corps is not required to 

make a formal determination whether a 

particular wetland or water is subject to 

jurisdiction under Section 404 of the 

Clean Water Act or Section 10 of the 

Rivers and Harbors Act of 1899 before 

issuing an individual permit or a 

general permit verification. Many 

project proponents prefer the time 

savings that can occur when the Corps 

issues an individual permit or general 

permit verification without expending 

the time and resources needed to make 

a formal, definitive determination 

whether those wetlands and waters are 

in fact jurisdictional and thus regulated 

under Section 404 of the Clean Water 

Act and/or Section 10 of the Rivers and 

Harbors Act of 1899. 

On April 21, 2020, the U.S. 

Environmental Protection Agency (EPA) 

and the Department of the Army 

published the Navigable Waters 

Protection Rule, revising the definition 

of ‘‘waters of the United States’’ (85 FR 

22250). Specifically, this final rule 

revises the Corps’ regulations at 33 CFR 

part 328.3, where the definition of 

‘‘waters of the United States’’ is located 

for the purposes of implementing 

Section 404 of the Clean Water Act. 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 federal 

district court-issued stay in that state 

(the case is currently under appeal). The 

rule has also been challenged in several 

other federal district courts. 

Please note that some of the NWPs 

could authorize activities that involve 

the discharge of dredged or fill material 

into water bodies that are not subject to 

CWA jurisdiction, or that may not be 

subject to CWA jurisdiction. For 

example, a project proponent could 

proceed with an NWP activity that does 

not require submission of a PCN to the 

Corps in a non-jurisdictional water 

without getting a definitive 

determination from the Corps that the 

wetland or waterbody is not a water of 

the United States and thus not subject 

to CWA jurisdiction. As another 

example, if a proposed NWP activity 

requires pre-construction notification, 

the district engineer could issue the 

NWP verification based on the 

delineation of wetlands, other special 

aquatic sites, and other waters provided 

with the PCN in accordance with 

paragraph (b)(5) of NWP general 

condition 32, without the Corps making 

any formal determination as to whether 

those wetlands, special aquatic sites, 

and other waters are ‘‘waters of the 

United States.’’ 

During the pendency of any litigation 

challenging the Navigable Waters 

Protection Rule, the NWPs will continue 

to authorize discharges of dredged or fill 

material in all water bodies that are 

subject to CWA jurisdiction, or that may 

2844 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

be subject to CWA jurisdiction, at the 

time those discharges occur. Where a 

particular waterbody into which a 

person proposes to discharge dredged or 

fill material is subject to CWA 

jurisdiction, compliance with the terms 

and conditions of one or more NWPs, or 

an individual permit, will be necessary. 

An affected party has the opportunity to 

request an approved jurisdictional 

determination from the Corps if the 

affected party would like the Corps’ 

formal determination on the 

jurisdictional status of a water or feature 

under the CWA. 

D. Compliance With the Endangered 

Species Act 

The NWP regulations at 33 CFR 

330.4(f) and NWP general condition 18, 

endangered species, ensure that all 

activities authorized by NWPs comply 

with section 7 of the Endangered 

Species Act (ESA). Those regulations 

and general condition 18 require nonfederal permittees to submit PCNs for 

any activity that might affect listed 

species or designated critical habitat, as 

well as species proposed for listing and 

critical habitat proposed for such 

designation. When the district engineer 

evaluates a PCN, he or she determines 

whether the proposed NWP activity may 

affect listed species or designated 

critical habitat. The Corps established 

the ‘‘might affect’’ threshold in 33 CFR 

330.4(f)(2) and paragraph (c) of general 

condition 18 because it is more stringent 

than the ‘‘may affect’’ threshold for 

section 7 consultation in the U.S. Fish 

and Wildlife Service’s (FWS) and 

National Marine Fisheries Service’s 

(NMFS) ESA section 7 consultation 

regulations at 50 CFR part 402. The 

word ‘‘might’’ is defined as having ‘‘less 

probability or possibility’’ than the word 

‘‘may’’ (Merriam-Webster’s Collegiate 

Dictionary, 10th edition). Since ‘‘might’’ 

has a lower probability of occurring, it 

is below the threshold (i.e., ‘‘may 

affect’’) that triggers the requirement for 

ESA section 7 consultation for a 

proposed Federal action. As discussed 

below, each year the Corps conducts 

thousands of ESA section 7 

consultations with the FWS and NMFS 

for activities authorized by NWPs. In 

recent years, an average of more than 

10,800 formal, informal, and 

programmatic ESA section 7 

consultations are conducted each year 

between the Corps and the FWS and/or 

NMFS in response to NWP PCNs, 

including those activities that required 

PCNs under paragraph (c) of general 

condition 18 under the ‘‘might affect’’ 

threshold. 

If the project proponent is required to 

submit a PCN and the proposed activity 

might affect listed species or designated 

critical habitat, species proposed for 

listing, or critical habitat proposed for 

such designation, the activity is not 

authorized by an NWP until either the 

district engineer makes a ‘‘no effect’’ 

determination or makes a ‘‘may affect’’ 

determination and completes formal or 

informal ESA section 7 consultation. 

The district engineer may also use a 

regional programmatic consultation to 

comply with the requirements of section 

7 of the ESA. 

When evaluating a PCN, where 

necessary and appropriate, the Corps 

district will either make a ‘‘no effect’’ 

determination or a ‘‘may affect’’ 

determination. If the district engineer 

makes a ‘‘may affect’’ determination, she 

or he will notify the non-federal project 

proponent and the activity is not 

authorized by the NWP until ESA 

Section 7 consultation has been 

completed. In making these 

determinations, the district engineer 

will apply the definition of ‘‘effects of 

the action’’ in the FWS’s and NMFS’s 

ESA consultation regulations at 50 CFR 

402.02. If the district engineer initiates 

section 7 consultation with the FWS 

and/or NMFS, that consultation will 

also consider ESA section 7 cumulative 

effects, in accordance with the 

definition of ‘‘cumulative effects’’ at 50 

CFR 402.02. If the non-federal project 

proponent does not comply with 33 CFR 

330.4(f)(2) and general condition 18, 

and does not submit the required PCN, 

then the activity is not authorized by an 

NWP. In such situations, it is an 

unauthorized activity and the Corps 

district will determine an appropriate 

course of action under its regulations at 

33 CFR part 326 to respond to the 

unauthorized activity, if and when the 

Corps learns about that unauthorized 

activity. 

Federal agencies, including state 

agencies (e.g., certain state Departments 

of Transportation) to which the Federal 

Highway Administration has assigned 

its responsibilities for ESA section 7 

consultation pursuant to 23 U.S.C. 

327(a)(2)(B), are required to follow their 

own procedures for complying with 

Section 7 of the ESA (see 33 CFR 

330.4(f)(1) and paragraph (b) of general 

condition 18). This includes 

circumstances where an NWP activity is 

part of a larger overall federal project or 

action. The federal agency’s ESA section 

7 compliance covers the NWP activity 

because it is undertaking the NWP 

activity and possibly other related 

activities that are part of a larger overall 

federal project or action. For those 

NWPs that require pre-construction 

notification for proposed activities, the 

federal permittee is required to provide 

the district engineer with the 

appropriate documentation to 

demonstrate compliance with section 7 

of the ESA. The district engineer will 

verify that the appropriate 

documentation has been submitted. If 

the appropriate documentation has not 

been submitted, additional ESA section 

7 consultation may be necessary for the 

proposed activity to fulfill both the 

federal agency’s and the Corps’ 

obligations to comply with the ESA. 

The only activities that potentially 

could be immediately authorized by 

NWPs, assuming they meet all other 

applicable NWP conditions, are 

activities that would have ‘‘no effect’’ on 

listed species or designated critical 

habitat within the meaning of Section 7 

of the ESA and its implementing 

regulations at 50 CFR part 402. 

Therefore, the issuance or reissuance of 

NWPs does not require ESA section 7 

consultation because no activities 

authorized by any NWPs ‘‘may affect’’ 

listed species or critical habitat without 

first completing activity-specific ESA 

Section 7 consultations with the 

Services, as required by general 

condition 18 and 33 CFR 330.4(f). 

Regional programmatic ESA section 7 

consultations may also be used by 

district engineers to satisfy the 

requirements of the NWPs in general 

condition 18 and 33 CFR 330.4(f) if a 

proposed NWP activity is covered by 

that regional programmatic 

consultation. 

In the August 27, 2019, issue of the 

Federal Register (84 FR 44976) the FWS 

and NMFS published a final rule that 

amended their regulations for 

interagency cooperation under Section 7 

of the ESA. That final rule went into 

effect on October 28, 2019. With respect 

to making effects determinations for 

proposed federal actions, such as 

activities authorized by NWPs, the FWS 

and NMFS made two important changes 

to 50 CFR part 402: (a) Introducing the 

term ‘‘consequences’’ to help define 

what is an effect under ESA section 7, 

and (b) emphasizing that to be 

considered an ‘‘effect of the action’’ 

under section 7 consultation, the 

consequences caused by the action 

would not occur but for the proposed 

action and must be reasonably certain to 

occur (see 84 FR 44977). Further 

clarification of ‘‘activities that are 

reasonably certain to occur’’ and 

‘‘consequences caused by the proposed 

action’’ were provided by the FWS and 

NMFS in rule text added at 50 CFR 

402.17(a) and (b), respectively. 

Applying the 2019 amendments to the 

section 7 regulations to the NWP 

program, consequences to listed species 

and designated critical habitat caused 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2845 

by proposed NWP activities must be 

reasonably certain to occur. In the 

preamble to their final rule, the FWS 

and NMFS stated that for a 

‘‘consequence of an activity to be 

considered reasonably certain to occur, 

the determination must be based on 

clear and substantial information’’ (see 

84 FR 44977). The FWS and NMFS 

explained that ‘‘clear and substantial’’ 

means that there has to be a firm basis 

for supporting a conclusion that a 

consequence of a federal action is 

reasonably certain to occur. The 

determination that a consequence is 

reasonably certain to occur should not 

be based on speculation or conjecture, 

and the information used to make that 

determination should have a ‘‘degree of 

certitude’’ (see 84 FR 44977). The Corps 

will apply these considerations when 

evaluating pre-construction 

notifications for proposed NWP 

activities. 

When the district engineer receives a 

pre-construction notification for a 

proposed NWP activity, he or she is 

responsible for applying the current 

definition of ‘‘effect of the action’’ to the 

proposed NWP activity and to 

determine the consequences caused by 

the proposed action and which 

activities are reasonably certain to 

occur. The district engineer determines 

whether the proposed NWP activity 

‘‘may affect’’ listed species or 

designated critical habitat and initiates 

formal or informal section 7 

consultation, unless she or he 

determines that the proposed NWP 

activity will have ‘‘no effect’’ on listed 

species or designated critical habitat. As 

a general rule, the district engineer 

documents his or her ‘‘no effect’’ 

determination in writing for every preconstruction notification that the 

district engineer receives and responds 

to. 

The NWP program has been 

structured, through the requirements of 

NWP general condition 18 and 33 CFR 

330.4(f), to focus ESA section 7 

compliance at the activity-specific and 

regional levels. Each year, an average of 

more than 10,800 formal, informal, and 

regional programmatic ESA section 7 

consultations are conducted by Corps 

districts with the FWS and/or NMFS in 

response to NWP PCNs for specific 

NWP activities (see below). Focusing 

ESA section 7 compliance at the 

activity-specific scale and regional 

programmatic scale is more efficient for 

the permittees, the Corps, and the FWS 

and NMFS, than doing so at the national 

level because of the similarities in 

ecosystem characteristics and associated 

listed species and critical habitat within 

a particular region. 

For a proposed NWP activity that may 

affect listed species or designated 

critical habitat, a biological opinion 

with an incidental take statement is 

needed for the NWP activity to go 

forward unless the FWS or NMFS 

issued a written concurrence that the 

proposed NWP activity is not likely to 

adversely affect listed species or 

designated critical habitat. It is through 

activity-specific section 7 consultations 

and regional programmatic section 7 

consultations between the Corps and the 

FWS and NMFS that effective protection 

of listed species and their designated 

critical habitat is achieved. 

After applying the current ESA 

section 7 regulations at 50 CFR part 402 

to the NWP rulemaking process, the 

Corps continues to believe that the 

issuance or reissuance of the NWPs has 

‘‘no effect’’ on listed species or 

designated critical habitat, and that the 

ESA section 7 compliance is most 

effectively achieved by applying the 

requirements of general condition 18 

and 33 CFR 330.4(f) to specific proposed 

NWP activities that are identified after 

the NWPs are issued and go into effect. 

Compliance with the requirements of 

ESA section 7 can also be achieved by 

district engineers applying appropriate 

formal or informal regional 

programmatic ESA section 7 

consultations that have been developed 

by Corps districts with regional offices 

of the FWS and NMFS. 

Section 7 of the Endangered Species 

Act requires each federal agency to 

ensure, through consultation with the 

Services, that ‘‘any action authorized, 

funded, or carried out’’ by that agency 

‘‘is not likely to jeopardize the 

continued existence of listed species or 

adversely modify designated critical 

habitat.’’ (See 16 U.S.C. 1536(a)(2).) 

Accordingly, the Services’ section 7 

regulations specify that an action agency 

must ensure that the action ‘‘it 

authorizes,’’ including authorization by 

permit, does not cause jeopardy or 

adverse modification. (See 50 CFR 

402.01(a) and 402.02). Thus, in 

assessing application of ESA section 7 

to NWPs issued or reissued by the 

Corps, the proper focus is on the nature 

and extent of the specific activities 

‘‘authorized’’ by the NWPs and the 

timing of that authorization. 

The issuance or reissuance of the 

NWPs by the Chief of Engineers imposes 

express limitations on activities 

authorized by these NWPs. These 

limitations are imposed by the NWP 

terms and conditions, including the 

general conditions that apply to all 

NWPs regardless of whether preconstruction notification is required by 

a specific NWP. With respect to listed 

species and critical habitat, general 

condition 18 expressly prohibits any 

activity ‘‘which ‘may affect’ a listed 

species or designated critical habitat, 

unless section 7 consultation addressing 

the effects of the proposed activity has 

been completed.’’ General condition 18 

also states that if an activity ‘‘might 

affect’’ a listed species or designated 

critical habitat (or a species proposed 

for listing or critical habitat proposed 

for such designation), a non-federal 

applicant must submit a PCN and ‘‘shall 

not begin work on the activity until 

notified by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized.’’ In addition, 33 CFR 

330.4(f)(2) imposes a PCN requirement 

for proposed NWP activities by nonfederal permittees where listed species 

(or species proposed for listing) or 

critical habitat might be affected or are 

in the vicinity of the proposed NWP 

activity. Section 330.4(f)(2) also 

prohibits those permittees from 

beginning the NWP activity until 

notified by the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized. Permit applicants that are 

Federal agencies must and will follow 

their own requirements for complying 

with the ESA (see 33 CFR 330.4(f)(1)). 

Thus, because no NWP can or does 

authorize an activity that may affect a 

listed species or critical habitat absent 

an activity-specific ESA section 7 

consultation or applicable regional 

programmatic ESA section 7 

consultation, and because any activity 

that may affect a listed species or 

critical habitat must undergo an 

activity-specific consultation or be in 

compliance with a regional 

programmatic ESA section 7 

consultation before the district engineer 

can verify that the activity is authorized 

by an NWP, the issuance or reissuance 

of NWPs has ‘‘no effect’’ on listed 

species or critical habitat. Accordingly, 

the action being ‘‘authorized’’ by the 

Corps (i.e., the issuance or re-issuance of 

the NWPs themselves) has no effect on 

listed species or critical habitat. 

To help ensure protection of listed 

species and critical habitat, general 

condition 18 and 33 CFR 330.4(f) 

establish a more stringent threshold 

than the threshold set forth in the 

Services’ ESA section 7 regulations for 

initiation of section 7 consultation. 

Specifically, while section 7 

consultation must be initiated for any 

activity that ‘‘may affect’’ listed species 

or critical habitat, for non-federal 

permittees general condition 18 require 

submission of a PCN to the Corps if 

‘‘any listed species (or species proposed 

2846 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

4https://ecos.fws.gov/ipac/. 

for listing) or designated critical habitat 

might be affected or is in the vicinity of 

the activity, or if the activity is located 

in designated critical habitat’’ or critical 

habitat proposed for such designation, 

and prohibits work until ‘‘notified by 

the district engineer that the 

requirements of the ESA have been 

satisfied and that the activity is 

authorized.’’ (See paragraph (c) of 

general condition 18.) The PCN must 

‘‘include the name(s) of the endangered 

or threatened species (or species 

proposed for listing) that might be 

affected by the proposed work or that 

utilize the designated critical habitat (or 

critical habitat proposed for such 

designation) that might be affected by 

the proposed work.’’ (See paragraph 

(b)(7) of the ‘‘Pre-Construction 

Notification’’ general condition.) 

Paragraph (f) of general condition 18 

notes that information on the location of 

listed species and their critical habitat 

can be obtained from the Services 

directly or from their websites. 

General condition 18 makes it clear to 

project proponents that an NWP does 

not authorize the ‘‘take’’ of an 

endangered or threatened species. 

Paragraph (e) of general condition 18 

also states that a separate authorization 

(e.g., an ESA section 10 permit or a 

biological opinion with an ‘‘incidental 

take statement’’) is required to take a 

listed species. In addition, paragraph (a) 

of general condition 18 states that no 

activity is authorized by an NWP which 

is likely to ‘‘directly or indirectly 

jeopardize the continued existence of a 

threatened or endangered species or a 

species proposed for such designation’’ 

or ‘‘which will directly or indirectly 

destroy or adversely modify the critical 

habitat of such species.’’ Such activities 

would require district engineers to 

exercise their discretionary authority 

and subject the proposed activity to the 

individual permit review process, 

because an activity that would 

jeopardize the continued existence of a 

listed species, or a species proposed for 

listing, or that would destroy or 

adversely modify the critical habitat of 

such species would not result in no 

more than minimal adverse 

environmental effects and thus cannot 

be authorized by an NWP. 

The Corps’ NWP regulations at 33 

CFR 330.1(c) state that an ‘‘activity is 

authorized under an NWP only if that 

activity and the permittee satisfy all of 

the NWP’s terms and conditions.’’ Thus, 

if a project proponent moves forward 

with an activity that ‘‘might affect’’ an 

ESA listed species without complying 

with the PCN or other requirements of 

general condition 18, the activity is not 

authorized under the CWA. In this case, 

the project proponent could be subject 

to enforcement action and penalties 

under the CWA. In addition, if the 

unauthorized activity results in a ‘‘take’’ 

of listed species as defined by the ESA 

and its implementing regulations, then 

he or she could be subject to penalties, 

enforcement actions, and other actions 

by the FWS or NMFS under section 11 

of the ESA. 

For listed species (and species 

proposed for listing) under the 

jurisdiction of the FWS, information on 

listed species that may be present in the 

vicinity of a proposed activity is 

available through the Information 

Planning and Consultation (IPaC) 

system,4 an on-line project planning 

tool developed and maintained by the 

FWS. 

During the process for developing 

regional conditions, Corps districts 

collaborate with FWS and/or NMFS 

regional or field offices to identify 

regional conditions that can provide 

additional assurance of compliance with 

general condition 18 and 33 CFR 

330.4(f)(2). Such regional conditions can 

add PCN requirements to one or more 

NWPs in areas inhabited by listed 

species or where designated critical 

habitat occurs. Regional conditions can 

also be used to establish time-of-year 

restrictions when no NWP activity can 

take place to ensure that individuals of 

listed species are not adversely affected 

by such activities. Corps districts will 

continue to consider through regional 

collaborations and consultations, local 

initiatives, or other cooperative efforts 

additional information and measures to 

ensure protection of listed species and 

critical habitat, the requirements 

established by general condition 18 

(which apply to all uses of all NWPs), 

and other provisions of the Corps 

regulations ensure full compliance with 

ESA section 7. 

Corps district office personnel meet 

with local representatives of the FWS 

and NMFS to establish or modify 

existing procedures, where necessary, to 

ensure that the Corps has the latest 

information regarding the existence and 

location of any threatened or 

endangered species or their critical 

habitat, including species proposed for 

listing or critical habitat proposed for 

such designation. Corps districts can 

also establish, through local procedures 

or other means, additional safeguards 

that ensure compliance with the ESA. 

Through formal ESA section 7 

consultation, or through other 

coordination with the FWS and/or the 

NMFS, as appropriate, the Corps 

establishes procedures to ensure that 

NWP activities will not jeopardize any 

threatened and endangered species or 

result in the destruction or adverse 

modification of designated critical 

habitat. Such procedures may result in 

the development of regional conditions 

added to the NWP by the division 

engineer, or in activity-specific 

conditions to be added to an NWP 

authorization by the district engineer. 

The Corps has prepared a biological 

assessment for this rulemaking action. 

The biological assessment concludes 

that the issuance or reissuance of NWPs 

has ‘‘no effect’’ on listed species and 

designated critical habitat and does not 

require ESA section 7 consultation. This 

conclusion was reached because no 

activities authorized by any NWPs ‘‘may 

affect’’ listed species or critical habitat 

without first completing activityspecific ESA Section 7 consultations 

with the Services, as required by general 

condition 18 and 33 CFR 330.4(f). 

Based on the fact that NWP issuance 

or reissuance of the NWPs is contingent 

upon any proposed NWP activity that 

‘‘may affect’’ listed species or critical 

habitat undergoing an activity-specific 

or regional programmatic ESA section 7 

consultation, there is no requirement 

that the Corps undertake consultation 

for the NWP program. The national 

programmatic consultations conducted 

in the past for the NWP program were 

voluntary consultations despite the 

inclusion of procedures to ensure 

consultation under Section 7 for 

proposed NWP activities that may affect 

listed species or designated critical 

habitat. Regional programmatic 

consultations can be conducted 

voluntarily by Corps districts and 

regional or local offices of the FWS and/ 

or NMFS to tailor regional conditions 

and procedures to ensure the ‘‘might 

affect’’ threshold is implemented 

consistently and effectively. 

Examples of regional programmatic 

consultations currently in effect, with 

the applicable Service the Corps 

consulted with, include: The Standard 

Local Operating Procedures for 

Endangered Species in Mississippi 

(2017—FWS); the Endangered Species 

Act Section 7 Programmatic Biological 

Opinion and Magnuson-Stevens Fishery 

Conservation and Management Act 

Essential Fish Habitat Consultation for 

Tidal Area Restoration Authorized, 

Funded, or Implemented by the Corps of 

Engineers, Federal Emergency 

Management Agency, and Federal 

Highways Administration, in Oregon 

and the Lower Columbia River (NMFS— 

2018); the U.S. Army Corps of Engineers 

Jacksonville District’s Programmatic 

Biological Opinion (JAXBO) (NMFS— 

2017); Missouri Bat Programmatic 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2847 

Informal Consultation Framework 

(FWS—2019); Revised Programmatic 

Biological/Conference Opinion for 

bridge and culvert repair and 

replacement projects affecting the Dwarf 

Wedgemussel, Tar River Spinymussel, 

Yellow Lance and Atlantic Pigtoe. 

Programmatic Conference Opinion 

(PCO) for Bridge and Culvert 

Replacement/Repairs/Rehabilitations in 

Eastern North Carolina, NCDOT 

Divisions 1–8 (FWS—2018); and the 

Corps and NOAA Fisheries Greater 

Atlantic Regional Fisheries Office 

(GARFO) Not Likely to Adversely Affect 

Program Programmatic Consultation 

(NMFS—2017). 

The programmatic ESA section 7 

consultations that the Corps conducted 

for the 2007 and 2012 NWPs were 

voluntary consultations. The voluntary 

programmatic consultation conducted 

with the NMFS for the 2012 NWPs 

resulted in a biological opinion issued 

on February 15, 2012, which was 

replaced by a new biological opinion 

issued on November 24, 2014. A new 

biological opinion was issued by NMFS 

after the proposed action was modified 

and triggered re-initiation of that 

programmatic consultation. The 

programmatic consultation on the 2012 

NWPs with the FWS did not result in a 

biological opinion. For the 2017 NWPs, 

the Corps did not request a national 

programmatic consultation. 

In the Corps Regulatory Program’s 

automated information system (ORM), 

the Corps collects data on all individual 

permit applications, all NWP PCNs, all 

voluntary requests for NWP 

verifications where the NWP or general 

conditions do not require PCNs, and all 

verifications of activities authorized by 

regional general permits. For all written 

authorizations issued by the Corps, the 

collected data include authorized 

impacts and required compensatory 

mitigation, as well as information on all 

consultations conducted under section 7 

of the ESA. Every year, the Corps 

evaluates approximately 35,000 NWP 

PCNs and requests for NWP 

verifications for activities that do not 

require PCNs, and provides written 

verifications for those activities when 

district engineers determine those 

activities result in no more than 

minimal adverse environmental effects. 

During the evaluation process, district 

engineers assess potential impacts to 

listed species and critical habitat and 

conduct section 7 consultations 

whenever they determine proposed 

NWP activities ‘‘may affect’’ listed 

species or critical habitat. District 

engineers will exercise discretionary 

authority and require individual permits 

when proposed NWP activities will 

result in more than minimal adverse 

environmental effects. 

Each year, the Corps conducts 

thousands of ESA section 7 

consultations with the FWS and NMFS 

for activities authorized by NWPs. 

These section 7 consultations are 

tracked in ORM. In FY 2018 (October 1, 

2017 to September 30, 2018), Corps 

districts conducted 640 formal 

consultations and 3,048 informal 

consultations under ESA section 7 for 

NWP PCNs. During that time period, the 

Corps also used regional programmatic 

consultations for 7,148 NWP PCNs to 

comply with ESA section 7. Therefore, 

each year an average of more than 

10,800 formal, informal, and 

programmatic ESA section 7 

consultations are conducted between 

the Corps and the FWS and/or NMFS in 

response to NWP PCNs, including those 

activities that required PCNs under 

paragraph (c) of general condition 18. 

For a linear project authorized by NWPs 

12 or 14, where the district engineer 

determines that one or more crossings of 

waters of the United States that require 

Corps authorization ‘‘may affect’’ listed 

species or designated critical habitat, 

the district engineer initiates a single 

section 7 consultation with the FWS 

and/or NMFS for all of those crossings 

that he or she determines ‘‘may affect’’ 

listed species or designate critical 

habitat. The number of section 7 

consultations provided above represents 

the number of NWP PCNs that required 

some form of ESA section 7 

consultation, not the number of single 

and complete projects authorized by an 

NWP that may be included in a single 

PCN. A single NWP PCN may include 

more than one single and complete 

project, especially if it is for a linear 

project such as a utility line or road 

with multiple separate and distant 

crossings of jurisdictional waters and 

wetlands from its point of origin to its 

terminal point. 

During the process for reissuing the 

NWPs, Corps districts coordinated with 

regional and field offices of the FWS 

and NMFS to discuss whether new or 

modified regional conditions should be 

imposed on the NWPs to improve 

implementation of the ‘‘might effect’’ 

threshold and improve protection of 

listed species and designated critical 

habitat and ensure that the NWPs only 

authorize activities with no more than 

minimal individual and cumulative 

adverse environmental effects. Regional 

conditions must comply with the Corps’ 

regulations at 33 CFR 325.4 for adding 

permit conditions to DA authorizations. 

The Corps decides whether suggested 

regional conditions identified during 

this coordination are appropriate for the 

NWPs. During this coordination, other 

tools, such as additional regional 

programmatic consultations or standard 

local operating procedures, might be 

developed by the Corps, FWS, and 

NMFS to facilitate compliance with the 

ESA while streamlining the process for 

authorizing activities under the NWPs. 

Section 7 consultation on regional 

conditions occurs only when a Corps 

districts makes a ‘‘may affect’’ 

determination and initiates formal or 

informal section 7 consultation with the 

FWS and/or NMFS, depending on the 

species that may be affected. Otherwise, 

the Corps district coordinates the 

regional conditions with the FWS and/ 

or NMFS. Regional conditions, standard 

local operating procedures, and regional 

programmatic consultations developed 

by the Corps, FWS, and NMFS are 

important tools for protecting listed 

species and critical habitat and helping 

to tailor the NWP program to address 

specific species, their habitats, and the 

stressors that affect those species. 

The Corps received numerous 

comments regarding compliance with 

the Endangered Species Act for both the 

rulemaking process for issuing, 

reissuing, and modifying the NWPs by 

Corps Headquarters, and compliance for 

specific activities authorized by NWPs. 

Many commenters expressed support 

for the Corps’ current method of ESA 

compliance without need for a national 

programmatic section 7 consultation. 

These commenters said that the 

requirements of general condition 18 

provide a sufficiently low threshold to 

trigger necessary ESA section 7 

consultations for NWP activities. Many 

commenters said that there is no 

requirement for the Corps to consult 

under the ESA for the reissuance of the 

NWPs because the reissuance of the 

NWPs has no effect on listed species 

and consultation for each NWP activity 

occurs as necessary. One commenter 

suggested that the Corps voluntarily 

consult on reissuance of the NWPs to 

provide regulatory certainty to the 

business community, and said that this 

voluntary consultation should not delay 

issuance of a final rule. Many 

commenters expressed opposition to 

reissuing the NWPs without completing 

a national programmatic ESA section 7 

consultation and addressing cumulative 

impacts to listed species. Several 

commenters stated that the Corps had 

failed to ensure that NWP activities are 

not likely to jeopardize the continued 

existence of listed species or adversely 

modify or destroy critical habitat, in 

violation of the ESA. A few commenters 

said that the Corps’ programmatic ‘‘no 

effect’’ determination for the NWPs is in 

error because it is arbitrary and 

2848 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

capricious, in violation of the ESA, and/ 

or in violation of federal court 

decisions. 

With this final rule, the Corps is 

continuing to implement its current 

approach to ESA section 7 compliance, 

through general condition 18 and 33 

CFR 330.4(f). The Corps has determined 

that the issuance of this final rule will 

have no effect on endangered or 

threatened species or critical habitat, 

completed a Biological Assessment to 

inform that conclusion, and therefore 

will not be submitting a request to the 

FWS and NMFS for a voluntary national 

programmatic ESA section 7 

consultation. The Corps will continue to 

comply with the requirements of 

Section 7(a)(2) of the ESA through 

activity-specific and regional 

programmatic section 7 consultations 

conducted between district engineers 

and regional and field offices of the 

FWS and NMFS. 

A few commenters stated that general 

18 unlawfully delegates the Corps’ ESA 

section 7 responsibilities to permittees. 

By requiring project proponents to 

submit PCNs if listed species ‘‘might 

be’’ affected, some commenters stated 

that the Corps unlawfully delegates the 

initial effect determination to the 

permittee. A few commenters said that 

the definition of agency ‘‘action’’ in the 

ESA which requires ESA section 7(b) 

consultation includes programmatic 

actions such as the Corps issuance of 

the NWPs. A few commenters said that 

formal programmatic consultation 

between the Corps and the Services is 

necessary to meet the requirements of 

the ESA, asserting that such 

consultation allows for consideration of 

the cumulative impacts of a program 

and guides implementation of the 

program by establishing criteria to avoid 

adverse effects. These commenters also 

said that project-specific consultation 

must then be undertaken for specific 

actions under the program, which is 

when incidental take is authorized. One 

commenter said that the Corps’ 

programmatic ‘‘no effect’’ with reliance 

on project specific consultation for 

compliance with the ESA is in error as 

it does not address cumulative impacts 

to species. The commenter further 

stated that this is clear based on past 

court cases, a past national 

programmatic consultation with NMFS, 

and the Services’ listing decisions and 

critical habitat designations whereby 

they assess activities permitted by NWP 

as a cause of the listing or designation 

decision. 

General condition 18 does not 

delegate the Corps’ ESA section 7 

responsibilities to permittees. 

Consultation under section 7(a)(2) of the 

ESA is only required when a federal 

agency determines that its proposed 

action may affect listed species or 

designated critical habitat. As explained 

in this section of the final rule, the 

‘‘might affect’’ threshold in paragraph 

(c) of general condition 18 is lower than 

the ‘‘may affect’’ threshold for triggering 

a requirement for consultation with the 

FWS and/or NMFS. The district 

engineer, not the permit applicant, is 

responsible for making a ‘‘may effect’’ or 

‘‘no effect’’ determination under ESA 

section 7. The non-federal permittee is 

responsible for complying with 

paragraph (c) of general condition 18 

and submitting a PCN to the district 

engineer when a proposed NWP activity 

triggers one of the PCN thresholds in 

that paragraph. 

As discussed above, the Corps 

evaluated the programmatic action of 

rulemaking to issue these NWPs and 

determined that the issuance or 

reissuance of the NWPs by Corps 

Headquarters has no effect on listed 

species or designated critical habitat; 

that evaluation is documented in a 

Biological Assessment that supports its 

no effect determination. Therefore, an 

ESA section 7(a)(2) consultation with 

the FWS and NMFS is not required on 

a national, programmatic level for the 

issuance or reissuance of the NWPs in 

this final rule. The Corps considered the 

effects of its proposed action (i.e., the 

issuance or reissuance of the NWPs 

through the rulemaking process), 

including the cumulative effects 

anticipated to be caused by that 

proposed action. Those cumulative 

impacts include the projected use of the 

NWPs during the 5-year period those 

NWPs are anticipated to be in effect, 

along with the estimated impacts to 

jurisdictional waters and wetlands and 

other resources, and the estimated 

compensatory mitigation required by 

district engineers to offset the 

authorized impacts. When issuing or 

reissuing the NWPs, or determining 

whether specific activities are 

authorized by an NWP, the Corps 

considers the individual and cumulative 

adverse environmental effects caused by 

those activities, including adverse 

environmental effects to a variety of 

resources, including jurisdictional 

waters and wetlands and the species 

that inhabit those waters and wetlands. 

With respect to cumulative effects 

under ESA section 7, the FWS and 

NMFS define ‘‘cumulative effects’’ as 

the ‘‘effects of future state or private 

activities, not involving Federal 

activities, that are reasonably certain to 

occur within the action area of the 

Federal action subject to consultation’’ 

(see 50 CFR 402.02). The Corps does not 

have the legal authority to regulate or 

control future state or private actions 

that do not involve activities that 

require DA authorization under Section 

10 of the Rivers and Harbors Act of 1899 

or Section 404 of the Clean Water Act. 

Therefore, the Corps does not have the 

authority or discretion to control 

cumulative effects to listed species or 

designated critical habitat that are 

caused by future state or private 

activities. Incidental take is addressed 

through activity-specific and regional 

programmatic formal ESA section 7 

section consultations when district 

engineers determine proposed NWP 

activities may affect listed species or 

designated critical habitat. 

Previous national ESA section 7 

programmatic consultations on the 

NWPs were voluntary consultations. 

Even though some listing decisions by 

the FWS or NMFS may have identified 

activities that may require DA permits 

as one of the contributing factors to 

listing a particular species as 

endangered or threatened under the 

ESA, those listing decisions usually 

acknowledge that section 7 

consultations will be conducted for 

proposed federal actions that may affect 

those species, including activities that 

require DA authorization under Section 

10 of the Rivers and Harbors Act of 1899 

and Section 404 of the Clean Water Act. 

An example is the final rule issued by 

NMFS on June 28, 2005, for the final 

listing determinations for 16 

evolutionary significant units of west 

coast salmon (see 70 FR 37195). 

One commenter suggested that the 

Corps require PCNs for all NWPs to 

ensure that the Corps is consulting as 

necessary under the ESA and is able to 

accurately track and evaluate 

cumulative impacts. One commenter 

stated that there is no requirement for 

the Corps to consult under the ESA for 

the NWPs but believes the Corps needs 

to rebut the findings in the Montana 

district court case in the text of the rule 

for purposes of future litigation. One 

commenter said that the Corps’ ‘‘no 

effect’’ determination and deferral of 

ESA consultation until the project is 

proposed is in alignment with recent 

changes to ESA implementing 

regulations at 50 CFR 402.17(a) and (b). 

Specifically, these commenters assert 

that the change to the ESA section 7 

regulations require that ‘‘program 

actions that are reasonably certain to 

occur’’ and the potential consequences 

of proposed actions be based on ‘‘clear 

and substantial information.’’ 

Information that, the commenter argues, 

is not available until the project and its 

location are proposed. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2849 

It is neither practical nor necessary to 

require PCNs for all activities 

authorized by NWPs to ensure 

compliance with section 7 the ESA. 

There are many activities authorized by 

the NWPs each year that have no effect 

on listed species or designated critical 

habitat, despite approximately 10,800 

ESA section 7 consultations occurring 

annually. Listed species are not 

uniformly distributed across the United 

States and tend to be concentrated in 

specific geographic areas (‘‘hotspots’’) 

(e.g., Evans et al. 2016), and there are 

areas in the country with jurisdictional 

waters and wetlands that have no or few 

listed species where NWP activities 

proceed with no effects to listed species 

or critical habitat. In addition, requiring 

PCNs for all activities authorized by 

NWPs would nearly double the number 

of PCNs reviewed by Corps district each 

year. In Appendix A of the Regulatory 

Impact Analysis for the 2020 Proposal, 

the Corps estimates that nearly 32,000 

NWP activities proceed without PCNs 

each year. The Regulatory Impact 

Analysis for the 2020 proposal is 

available in the www.regulations.gov 

docket for this rule (docket number 

COE–2020–0002). That increase in the 

Corps’ workload could result in changes 

in the effectiveness and efficiency in the 

review of PCNs by district engineers, as 

well as their evaluations of other 

activities requiring DA authorization, 

including activities authorized by 

individual permits and regional general 

permits. The increase in the Corps’ 

workload could also affect its ability to 

conduct enforcement and compliance 

actions. Finally, and as explained above, 

General Condition 18 addresses this 

commenter’s concerns regarding PCN 

requirements. 

The Corps agrees that its ‘‘no effect’’ 

determination for the issuance or 

reissuance of the NWPs complies with 

the ESA section 7 regulations at 50 CFR 

part 402, because section 7 consultation 

is not required when a federal agency 

determines its proposed action will 

have no effect on listed species or 

designated critical habitat. In the 

biological assessment prepared by the 

Corps for this rulemaking activity, the 

Corps presents a substantial amount of 

data to demonstrate the actions it takes 

to comply with section 7 of the ESA, 

including the number of formal and 

informal section 7 consultations it 

conducts with the FWS and NMFS and 

the number of regional programmatic 

consultations and other tools it has 

developed with the FWS and NMFS. 

One commenter said that the when 

the Corps implements an incidental take 

statement as a condition in its NWP 

verification it must undertake a project 

specific NEPA analysis. One commenter 

stated that the incidental take statement 

must be applied to entire project and 

not just the areas over which the Corps 

has control and responsibility. If not, 

the project proponent must obtain an 

ESA section 10(a)(1)(B) permit from the 

Services to ensure compliance with the 

ESA. Absent this, general condition 18 

has the potential to continuously violate 

the ESA. 

When a district engineer adds 

conditions to an NWP authorization to 

comply with the ESA or other federal 

laws, including terms and conditions 

from reasonable and prudent measures 

identified in an incidental take 

statement in a biological opinion that 

apply to the activity authorized by an 

NWP, a project-specific NEPA analysis 

is not required. The Corps complies 

with the requirements of NEPA when it 

prepares environmental assessments in 

the national decision documents for the 

issuance or reissuance of the NWPs by 

Corps Headquarters. The activities to 

which an incidental take statement in a 

biological opinion issued by the FWS or 

NMFS applies is dependent on projectspecific circumstances identified in that 

biological opinion. When the FWS or 

NMFS write an incidental take 

statement for a biological opinion, 

under section 7(b)(4)(iv) of the ESA they 

can assign responsibility of specific 

terms and conditions of the incidental 

take statement to the federal action 

agency (e.g., the Corps), the applicant, 

or both taking into account their 

respective roles, authorities, and 

responsibilities (see 84 FR 44977). 

Paragraph (f) of general condition 18 

addresses ESA section 10(a)(1)(B) 

incidental take permits and their 

potential application for NWP activities. 

The Corps has carefully considered 

and evaluated all comments that were 

provided regarding this issue. The Corps 

reaffirms that its ‘‘no effect’’ 

determination for the promulgation of 

the NWPs is correct and appropriate, for 

the reasons explained above. 

E. Compliance With the Essential Fish 

Habitat Provisions of the MagnusonStevens Fishery Conservation and 

Management Act 

The NWP Program’s compliance with 

the essential fish habitat (EFH) 

consultation requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act will 

be achieved through EFH consultations 

between Corps districts and NMFS 

regional offices. This approach 

continues the EFH Conservation 

Recommendations provided by NMFS 

Headquarters to Corps Headquarters in 

1999 for the NWP program. Corps 

districts that have EFH designated 

within their geographic areas of 

responsibility will coordinate with 

NMFS regional offices, to the extent 

necessary, to develop NWP regional 

conditions that conserve EFH and are 

consistent with the NMFS regional EFH 

Conservation Recommendations. Corps 

districts will conduct consultations in 

accordance with the EFH consultation 

regulations at 50 CFR 600.920. 

One commenter said that consultation 

with NMFS needs to occur for all NWPs 

used in essential fish habitat. The Corps 

continues to implement the EFH 

Conservation Recommendation 

provided by NMFS in 1999. In those 

Corps districts where essential fish 

habitat has been designated, district 

engineers review PCNs for proposed 

NWP activities to determine whether 

those proposed activities may adversely 

affect essential fish habitat. If the 

district engineer determines a proposed 

NWP activity may adversely affect 

essential fish habitat, she or he initiates 

EFH consultation with the NMFS. 

Division engineers can add PCN 

requirements via regional conditions to 

those NWPs that do not require PCNs 

for all activities to ensure that EFH 

consultation is conducted for proposed 

activities that may adversely affect EFH. 

F. Compliance With Section 106 of the 

National Historic Preservation Act 

The NWP regulations at 33 CFR 

330.4(g) and the ‘‘Historic Properties’’ 

general condition (general condition 

20), ensure that all activities authorized 

by NWPs comply with section 106 of 

the NHPA. The ‘‘Historic Properties’’ 

general condition requires non-federal 

permittees to submit PCNs for any 

activity that might have the potential to 

cause effects to any historic properties 

listed on, determined to be eligible for 

listing on, or potentially eligible for 

listing on the National Register of 

Historic Places, including previously 

unidentified properties. The Corps then 

evaluates the PCN and makes an effect 

determination for the proposed NWP 

activity for the purposes of NHPA 

section 106. We established the ‘‘might 

have the potential to cause effects’’ 

threshold in paragraph (c) of the 

‘‘Historic Properties’’ general condition 

to require PCNs for those activities so 

that the district engineer can evaluate 

the proposed NWP activity and 

determine whether it has no potential to 

cause effects to historic properties or 

whether it has potential to cause effects 

to historic properties and thus require 

section 106 consultation. 

If the project proponent is required to 

submit a PCN and the proposed activity 

might have the potential to cause effects 

2850 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

to historic properties, the activity is not 

authorized by an NWP until either the 

Corps district makes a ‘‘no potential to 

cause effects’’ determination or 

completes NHPA section 106 

consultation. 

When evaluating a PCN, the Corps 

will either make a ‘‘no potential to cause 

effects’’ determination or a ‘‘no historic 

properties affected,’’ ‘‘no adverse 

effect,’’ or ‘‘adverse effect’’ 

determination. If the Corps makes a ‘‘no 

historic properties affected,’’ ‘‘no 

adverse effect,’’ or ‘‘adverse effect’’ 

determination, it will notify the nonfederal applicant and the activity is not 

authorized by an NWP until NHPA 

Section 106 consultation has been 

completed. If the non-federal project 

proponent does not comply with the 

‘‘Historic Properties’’ general condition, 

and does not submit the required PCN, 

then the activity is not authorized by an 

NWP. In such situations, it is an 

unauthorized activity and the Corps 

district will determine an appropriate 

course of action to respond to the 

unauthorized activity. 

The only activities that are 

immediately authorized by NWPs are 

‘‘no potential to cause effect’’ activities 

under section 106 of the NHPA, its 

implementing regulations at 36 CFR part 

800, and the Corps’ ‘‘Revised Interim 

Guidance for Implementing Appendix C 

of 33 CFR part 325 with the Revised 

Advisory Council on Historic 

Preservation Regulations at 36 CFR part 

800,’’ dated April 25, 2005, and 

amended on January 31, 2007. 

Therefore, the issuance or reissuance of 

NWPs does not require NHPA section 

106 consultation because no activities 

that might have the potential to cause 

effects to historic properties can be 

authorized by an NWP without first 

completing activity-specific NHPA 

Section 106 consultations, as required 

by the ‘‘Historic Properties’’ general 

condition. Programmatic agreements 

(see 36 CFR 800.14(b)) may also be used 

to satisfy the requirements of the NWPs 

in the ‘‘Historic Properties’’ general 

condition if a proposed NWP activity is 

covered by that programmatic 

agreement. 

NHPA section 106 requires a federal 

agency that has authority to license or 

permit any undertaking, to take into 

account the effect of the undertaking on 

any district, site, building, structure, or 

object that is included in or eligible for 

inclusion in the National Register, prior 

to issuing a license or permit. The head 

of any such Federal agency shall afford 

the Advisory Council on Historic 

Preservation a reasonable opportunity to 

comment on the undertaking. Thus, in 

assessing application of NHPA section 

106 to NWPs issued or reissued by the 

Corps, the proper focus is on the nature 

and extent of the specific activities 

‘‘authorized’’ by the NWPs and the 

timing of that authorization. 

The issuance or reissuance of the 

NWPs by the Chief of Engineers imposes 

express limitations on activities 

authorized by those NWPs. These 

limitations are imposed by the NWP 

terms and conditions, including the 

general conditions that apply to all 

NWPs regardless of whether preconstruction notification is required. 

With respect to historic properties, the 

‘‘Historic Properties’’ general condition 

expressly prohibits any activity that 

‘‘may have the potential to cause effects 

to properties listed, or eligible for 

listing, in the National Register of 

Historic Places,’’ until the requirements 

of section 106 of the NHPA have been 

satisfied. The ‘‘Historic Properties’’ 

general condition also states that if an 

activity ‘‘might have the potential to 

cause effects’’ to any historic properties, 

a non-federal applicant must submit a 

PCN and ‘‘shall not begin the activity 

until notified by the district engineer 

either that the activity has no potential 

to cause effects to historic properties or 

that consultation under Section 106 of 

the NHPA has been completed.’’ Permit 

applicants that are Federal agencies 

should follow their own requirements 

for complying with section 106 of the 

NHPA (see 33 CFR 330.4(g)(1) and 

paragraph (b) of the ‘‘Historic 

Properties’’ general condition). 

Thus, because no NWP can or does 

authorize an activity that may have the 

potential to cause effects to historic 

properties, and because any activity that 

may have the potential to cause effects 

to historic properties must undergo an 

activity-specific section 106 

consultation (unless that activity is 

covered under a programmatic 

agreement) before the district engineer 

can verify that the activity is authorized 

by an NWP, the issuance or reissuance 

of NWPs has ‘‘no potential to cause 

effects’’ on historic properties. 

Accordingly, the action being 

‘‘authorized’’ by the Corps, which is the 

issuance or re-issuance of the NWPs by 

Corps Headquarters, has no potential to 

cause effects on historic properties. 

To help ensure protection of historic 

properties, the ‘‘Historic Properties’’ 

general condition establishes a higher 

threshold than the threshold set forth in 

the Advisory Council’s NHPA section 

106 regulations for initiation of section 

106 consultation. Specifically, while 

section 106 consultation must be 

initiated for any activity that ‘‘has the 

potential to cause effects to’’ historic 

properties, for non-federal permittees 

the ‘‘Historic Properties’’ general 

condition requires submission of a PCN 

to the Corps if ‘‘the NWP activity might 

have the potential to cause effects to any 

historic properties listed on, determined 

to be eligible for listing on, or 

potentially eligible for listing on the 

National Register of Historic Places, 

including previously unidentified 

properties.’’ The ‘‘Historic Properties’’ 

general condition also prohibits the 

proponent from conducting the NWP 

activity ‘‘until notified by the district 

engineer either that the activity has no 

potential to cause effects to historic 

properties or that consultation under 

Section 106 of the NHPA has been 

completed.’’ (See paragraph (c) of the 

‘‘Historic Properties’’ general condition.) 

The PCN must ‘‘state which historic 

property might have the potential to be 

affected by the proposed activity or 

include a vicinity map indicating the 

location of the historic property.’’ (See 

paragraph (b)(8) of the ‘‘PreConstruction Notification’’ general 

condition.) 

During the process for developing 

regional conditions, Corps districts can 

coordinate or consult with State Historic 

Preservation Officers, Tribal Historic 

Preservation Officers, and tribes to 

identify regional conditions that can 

provide additional assurance of 

compliance with the ‘‘Historic 

Properties’’ general condition and 33 

CFR 330.4(g)(2) for NWP activities 

undertaken by non-federal permittees. 

Such regional conditions can add PCN 

requirements to one or more NWPs 

where historic properties occur. Corps 

districts will continue to consider 

through regional consultations, local 

initiatives, or other cooperative efforts 

and additional information and 

measures to ensure protection of 

historic properties, the requirements 

established by the ‘‘Historic Properties’’ 

general condition (which apply to all 

uses of all NWPs), and other provisions 

of the Corps regulations and guidance 

ensure full compliance with NHPA 

section 106. 

Based on the fact that NWP issuance 

or reissuance has no potential to cause 

effects on historic properties and that 

any activity that ‘‘has the potential to 

cause effects’’ to historic properties will 

undergo activity-specific NHPA section 

106 consultation, there is no 

requirement that the Corps undertake 

programmatic consultation for the NWP 

program. Regional programmatic 

agreements can be established by Corps 

districts and State Historic Preservation 

Officers and/or Tribal Historic 

Preservation Officers to comply with the 

requirements of section 106 of the 

NHPA. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2851 

One commenter stated the reissuance 

of the NWPs does not require Section 

106 NHPA consultation, but specific 

activities may require section 106 

consultation. One commenter said the 

Corps should programmatically address 

the potential adverse effects from 

undertakings permitted pursuant to the 

NWPs either by creating a national 

programmatic agreement or a divisionspecific programmatic agreement. One 

commenter stated that the Corps’ 

position that effects to historic 

properties would be evaluated on an 

individual activity phase is not 

consistent with the 36 CFR part 800 

regulations. One commenter disagreed 

with the Corps’ position that the 

issuance or reissuance of the NWPs has 

‘‘no potential to cause effect’’ on historic 

properties and does not require 

compliance with Section 106 of the 

NHPA. This commenter said that 

reliance on general conditions 20, 21, 

and 32 is not a substitute for appropriate 

compliance with section 106 in 

individual cases. 

For most NWP activities, the need to 

conduct NHPA section 106 is 

determined on a case-by-case basis, as 

district engineers evaluate PCNs for 

proposed NWP activities, including 

PCNs submitted by non-federal 

permittees under paragraph (c) of 

general condition 20. The Corps 

believes that programmatic agreements 

for section 106 compliance are more 

appropriately developed at a regional 

level, between Corps districts and State 

Historic Preservation Officers and Tribal 

Historic Preservation Officers. The 

Advisory Council on Historic 

Preservation’s regulations provide for 

section 106 consultation on a case-bycase basis, although it includes 

provisions for federal agency program 

alternatives, including alternative 

procedures and programmatic 

agreements (see 36 CFR 800.14). With 

respect to section 106 of the NHPA, the 

only activities immediately authorized 

by an NWP are those activities that have 

no potential to cause effects to historic 

properties. Paragraph (c) of general 

condition 20 requires non-federal 

permittees to submit PCNs for any 

proposed NWP activities that might 

have the potential to cause effects to 

historic properties. District engineers 

review these PCNs to determine 

whether NHPA section 106 consultation 

is required for a proposed NWP activity. 

Several commenters stated that 

Appendix C to 33 CFR part 325 and the 

2005 and 2007 interim guidance 

documents issued by the Corps does not 

constitute an acceptable federal agency 

program alternative under 36 CFR 

800.14. One commenter said that the 

Corps does not have the authority under 

the Clean Water Act and the River and 

Harbors Act of 1899 to promulgate its 

own regulations for compliance with 

Section 106 of the National Historic 

Preservation Act (i.e., Appendix C to 33 

CFR part 325) rather than complying 

with 36 CFR part 800. 

The Corps continues to use Appendix 

C and the 2005 and 2007 interim 

guidance to comply with section 106 of 

the NHPA. Section 110(a)(2)(E)(i) of the 

NHPA states that federal agencies can 

develop their own procedures for 

complying with section 106 as long as 

those procedures are consistent with the 

regulations issued by the Advisory 

Council on Historic Preservation. 

A few commenters stated the NWPs 

and the general conditions violate the 

NHPA by delegating the effects 

determination to non-federal permittees 

by allowing permittees to make a 

determination of effect for NWP 

activities that do not require PCNs. 

Several commenters said that general 

condition 20 is inconsistent with the 36 

CFR part 800 regulations. One 

commenter stated that general condition 

20 does not provide a standard by 

which the permittee must determine a 

PCN is necessary because of potential 

effects to historic properties. 

The NWPs and their general 

conditions do not delegate effects 

determinations under section 106 of the 

NHPA to non-federal permittees. 

Paragraph (c) of general condition 20 

requires non-federal permittees to 

submit PCNs to district engineers for 

any proposed NWP activity that might 

have the potential to cause effects to 

historic properties. District engineers 

will review those PCNs and determine 

whether section 106 NHPA consultation 

is required for proposed NWP activities. 

The ‘‘might have the potential to cause 

effects’’ to any historic property is a 

standard to guide permittees as to when 

they need to submit PCNs so that 

district engineers can determine 

whether section 106 consultation is 

required for a proposed NWP activity. 

A few commenters said that the 

Corps’ permit area (area of potential 

effects) for section 106 compliance 

should not be limited to the activity 

within waters of the United States that 

requires DA authorization, and that the 

area of potential effects should 

encompass the entire project that 

requires the permit. One commenter 

stated that the Corps’ limited permit 

area causes costly delays to the project 

proponent when section 106 disputes 

are triggered, and that by limiting the 

permit area, the Corps undertaking does 

not adequately consider direct or 

indirect effect on historic properties. 

The Corps’ permit area or area of 

potential effects is limited to those areas 

and activities where the Corps has 

control and responsibility to address 

effects to historic properties through its 

permitting authorities under Section 

404 of the Clean Water Act and Section 

10 of the Rivers and Harbors Act of 

1899. District engineers work with 

permit applicants and other consulting 

parties to resolve disagreements about 

permit areas for section 106 compliance. 

When evaluating PCNs, district 

engineers consider direct and indirect 

effects to historic properties. 

A few commenters said that a federal 

agency must consult with the Advisory 

Council on Historic Preservation, State 

Historic Preservation Offices, Tribal 

Historic Preservation Officers, tribes, 

and Native Hawaiian organization, 

where applicable, when effects to 

historic properties cannot be fully 

determined, and said that if a PCN is not 

warranted, these groups are not 

provided an opportunity to comment. 

One commenter said that the Corps 

must afford the Advisory Council on 

Historic Preservation a reasonable 

opportunity to comment on the 

undertaking, and when no PCN is 

required for an NWP activity, there is no 

consultation on the undertaking. 

Non-federal permit applicants are 

responsible for complying with general 

condition 20, including the requirement 

to submit PCNs for any proposed NWP 

activity that might have the potential to 

cause effects to historic properties, so 

that the district engineer can determine 

whether section 106 consultation is 

required for proposed activity. If the 

district engineer determines section 106 

consultation is necessary, she or he will 

identify consulting parties and initiate 

section 106 consultation with those 

consulting parties. District engineers 

provide the Advisory Council on 

Historic Preservation with a reasonable 

opportunity to comment when the 

Council enters the section 106 process 

in accordance with Appendix A to 36 

CFR part 800. 

G. Section 401 of the Clean Water Act 

A water quality certification issued by 

a state, authorized tribe, or EPA, or a 

waiver thereof, is required by section 

401 of the Clean Water Act, for an 

activity authorized by an NWP which 

may result in a discharge from a point 

source into waters of the United States. 

Water quality certifications may be 

granted without conditions, granted 

with conditions, denied, or waived for 

specific NWPs. 

Nationwide permits 21, 29, 39, 40, 42, 

43, and 50 would authorize activities 

that may result in discharges to waters 

2852 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

of the United States and therefore 

section 401 water quality certification or 

waiver is required for those NWPs. 

Nationwide permits 12, 48, 51, 52, 57, 

and 58 would authorize various 

activities, some of which may result in 

a discharge to waters of the United 

States and require section 401 water 

quality certification or waiver, and 

others which may not. Nationwide 

permits 55, and 56 do not require 

section 401 water quality certification 

because they would authorize activities 

which, in the opinion of the Corps, 

could not reasonably be expected to 

result in a discharge into waters of the 

United States. In the case of NWP 8, it 

only authorizes activities seaward of the 

territorial seas where the Clean Water 

Act does not apply. 

Prior to the issuance of the 16 NWPs, 

certifying authorities made their 

decisions on whether to issue, deny, or 

waive water quality certification (WQC) 

for the issuance of the NWPs. If a 

certifying authority issued water quality 

certifications with conditions for the 

issuance of these NWPs, district 

engineers reviewed the conditions in 

those water quality certifications to 

determine whether they comply with 

the requirements in 40 CFR 121.7(d). If 

the district engineer determines that any 

condition in the water quality 

certification for the issuance of the 

NWPs does not comply with the 

requirements of 40 CFR 121.7(d), and is 

waived pursuant to 40 CFR 121.9(d), the 

district engineer will notify the 

certifying authority and the EPA 

Administrator in accordance with 40 

CFR 121.9(c). The conditions in the 

water quality certification for the 

issuance of the NWP that comply with 

the requirements of 40 CFR 121.7(d) and 

are not waived become conditions of the 

NWP authorization in accordance with 

Section 401(d) of the Clean Water Act. 

If a certifying agency denies WQC for 

the issuance of an NWP, then the 

proposed discharges are not authorized 

by that NWP unless and until a project 

proponent obtains WQC for the specific 

discharge from the certifying authority, 

or a waiver of WQC occurs. 

In the 2020 Proposal, the Corps noted 

that EPA issued revisions to its 

regulations governing the Clean Water 

Act section 401 certification process on 

June 1, 2020. In the future, it may be 

necessary or appropriate for the Corps to 

revise its own section 401 regulations, 

including 33 CFR 330.4, in light of 

EPA’s Clean Water Act Section 401 

Certification Rule. The Corps invited 

comments from the public on whether 

and, if so, when the Corps should revise 

those regulations in light of the new 

EPA regulations. 

In response to the proposed rule and 

the associated requests for water quality 

certification, many certifying authorities 

requested an extension of the 60-day 

reasonable period of time to review and 

certify the proposed NWPs. A few 

commenters said that many states 

cannot comply with the 60 days 

provided due to public participation 

requirements, including public 

hearings. A few commenters stated that 

the 60-day review period is not 

sufficient time to review the proposed 

NWPs considering recent changes to 

EPA’s regulations for Section 401 of the 

Clean Water Act and the issuance of the 

final Navigable Waters Protection Rule. 

One commenter voiced support for 60 

days certifying their complete WQC 

decision for the proposed NWPs. One 

commenter stated that the 60-day 

reasonable period of time should be 

extended to 180 days to provide 

adequate time to review the proposed 

rule including the proposed NWPs. One 

commenter said that the abbreviated 

timeline undermines and limits state 

and tribal input. A few commenters said 

the Corps should request certification 

on the final NWPs. One commenter said 

that 60 days to act on the certification 

request is not consistent with the terms 

of a 1992 settlement agreement between 

the Pennsylvania Department of 

Environmental Resources and the Corps. 

In light of the timeframe for issuing 

the final NWPs, the Corps did not grant 

extensions to the 60-day reasonable 

period of time for water quality 

certification. Section 401 of the Clean 

Water Act and EPA’s regulations at 40 

CFR 121.6 give the Corps the authority 

to establish the reasonable period of 

time. For this issuance of these NWPs, 

the Corps complied with EPA’s final 

rule, which was published in the 

Federal Register on July 13, 2020, and 

went into effect on September 11, 2020. 

That final rule went into effect a few 

days before the proposed NWPs were 

published in the Federal Register for 

public comment. The Corps worked 

with the Commonwealth of 

Pennsylvania to address the 1992 

settlement agreement. 

Many commenters said that the 

reasonable period of time for 

certification of the NWPs should be 

extended until the final rule is issued. 

A few commenters stated that certifying 

the proposed NWPs prior to the NWPs 

being finalized is problematic as there 

are significant proposed changes in the 

NWPs. Several commenters said that the 

procedure is outside of the normal 

standard practice of certifying the NWPs 

after the final NWPs are issued. Many 

commenters expressed concern and 

disagreement over reviewing and 

certifying the proposed NWPs at the 

same time. Several commenters said 

that water quality certification 

conditions could change if the final 

NWPs are modified from the proposed 

NWPs. 

Section 401 of the Clean Water Act 

states that no permit shall be issued 

until water quality certification has been 

obtained or waived. Therefore, the water 

quality certification process must be 

completed before the final NWPs are 

issued. That process is consistent with 

the Corps’ NWP regulations at 33 CFR 

330.4(c)(1), which says that ‘‘water 

quality certification pursuant to section 

401 of the Clean Water Act, or waiver 

thereof, is required prior to the issuance 

or reissuance of NWPs authorizing 

activities which may result in a 

discharge into waters of the United 

States.’’ The water quality certification 

regulations issued by EPA this year also 

state that water quality certification 

requests are made for proposed general 

permits, not the final general permits. 

The regulations issued by EPA include 

no provisions for modifying water 

quality certifications after the certifying 

authority has acted on the federal 

agency’s certification request. If the 

federal agency is planning to make 

changes to the general permit in 

response to public comments, those 

changes may trigger a requirement for a 

new certification before the federal 

agency can issue the final general 

permit (see 85 FR 42279). 

A few commenters said that 

requesting state certification of the 

proposed NWPs does not recognize that 

there may be changes to the final NWPs 

based upon the public comments 

received. A few commenters stated that 

they should have the opportunity to 

fully evaluate the final version of the 

NWPs and modify their water quality 

certifications as necessary. A few 

commenters expressed disagreement 

with the request to certify the proposed 

NWPs and requested the Corps provide 

a reasonable review time and issue the 

WQC on the final NWPs after any 

changes have been made after 

considering public comments. A few 

commenters said that water quality 

certifications may be issued 

conditionally and only valid if the final 

NWPs are not different than the 

proposed NWPs. A few commenters 

noted that the Corps’ request to certify 

the proposed NWPs is a departure from 

past practice whereby states issue water 

quality certifications on the final NWPs 

before those NWPs go into effect. 

As discussed above, certifying 

authorities must act on certification 

requests before the Corps can issue the 

final NWPs. The Corps acknowledges 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2853 

that the water quality certification 

process for the 2020 Proposal is a 

departure from past practice; however, 

it is consistent with section 401 and 

EPA’s final certification regulation at 40 

CFR part 121. In the 16 NWPs issued in 

this final rule, there were no substantive 

changes that trigger a requirement for 

the Corps to submit new certification 

requests for the NWPs. 

A few commenters said that the 

separate review 60-day timeline for 

water quality certification and the 90- 

day timeline for CZMA consistency 

determinations bifurcates the review 

process and is unnecessarily 

cumbersome and suggested that a joint 

90-day review period should be 

provided. The Corps established 

different review periods for water 

quality certification and CZMA 

consistency determinations because 

those are separate processes that are 

governed by distinctly different laws 

and regulations. Section 401 of the 

Clean Water Act gives the permitting 

authority the ability to establish the 

reasonable period of time for a certify 

authority to act on a request for water 

quality certification. The CZMA 

consistency determination process is 

governed by regulations issued by the 

Department of Commerce at 15 CFR part 

930. 

Several commenters stated that 

subsequent changes from the proposed 

NWPs to the final NWPs may result in 

in missing or inappropriate conditions 

and leave the certifying agencies with 

no opportunity to remedy a deficient 

certification. One commenter said that 

changes between the proposed NWPs 

and the final NWPs may require 

certifying authorities to deny 

certification due to insufficient 

information. One commenter stated that 

denying water quality certification for 

all of the proposed NWPs would have 

significant implications for streamlining 

federal permitting of discharges 

authorized by the NWPs. One 

commenter said that should water 

quality certification for the issuance of 

the NWPs be denied, there will be 

additional burdens on permittees. One 

commenter said the Corps would need 

to request water quality certification on 

the final NWPs to have valid water 

quality certifications. One commenter 

said that some states operate under state 

general permits where NWPs are 

revoked. This commenter noted that the 

denied certifications for NWPs will raise 

conflicts and issues when state general 

permits are reissued. 

As discussed above, water quality 

certification decisions by certifying 

authorities must be made before the 

Corps issues the final NWPs. Certifying 

authorities can deny water quality 

certifications if they believe they do not 

have sufficient information to issue 

water quality certification (see 40 CFR 

121.7(e)(2)). The Corps acknowledges 

that denial of water quality 

certifications for the issuance of the 

NWPs creates burdens on the regulated 

public in terms of having to obtain 

water quality certifications or waivers 

for specific discharges authorized by 

NWPs. The issuance of the NWPs by 

Corps Headquarters is an independent 

process from the issuance of regional 

general permits by district engineers. 

One commenter stated a website 

where all final WQC conditions are 

posted would be helpful. One 

commenter said the Corps should 

provide proposed water quality 

certification conditions for the NWPs 

and let the state agencies review those 

proposed conditions to make the 

certification process for the NWPs. One 

commenter stated that the Corps should 

not revise its water quality certification 

regulations. 

After the final NWPs are issued and 

division engineers have approved the 

final regional conditions for the NWPs, 

Corps districts will issue public notices 

announcing the final regional 

conditions for the NWPs and the 

disposition of water quality 

certifications and CZMA consistency 

concurrences for the final NWPs. The 

Corps will post copies of these district 

public notices in the 

www.regulations.gov docket for this 

rulemaking action (docket number 

COE–2020–0002). It is the certifying 

authorities’ responsibility to develop 

conditions for their water quality 

certifications for the issuance of the 

NWPs. The Corps will be revising the 

provisions in its regulations for water 

quality certification, to be consistent 

with EPA’s new water quality 

certification regulations. 

H. Section 307 of the Coastal Zone 

Management Act (CZMA) 

Any state with a federally-approved 

CZMA program must concur with the 

Corps’ determination that activities 

authorized by NWPs which are within, 

or will have reasonably foreseeable 

effects on any land or water uses or 

natural resources of, the state’s coastal 

zone, are consistent with the CZMA 

program to the maximum extent 

practicable. Coastal Zone Management 

Act consistency concurrences may be 

issued without conditions, issued with 

conditions, or denied for specific NWPs. 

Prior to the issuance of the 16 NWPs, 

states made their decisions on whether 

to concur with or object to the Corps’ 

CZMA consistency determination for 

the issuance of the NWPs. If a state 

issued a concurrence with conditions 

for the issuance of these NWPs, district 

engineers reviewed the conditions in 

those consistency concurrences to 

determine whether they comply with 

the Corps’ regulations for permit 

conditions at 33 CFR 325.4. If a state 

objected to the Corps’ CZMA 

consistency determination for the 

issuance of an NWP, then the activity is 

not authorized by that NWP unless and 

until a project proponent obtains a 

consistency concurrence from the state 

or a presumption of concurrence occurs. 

The Corps’ CZMA consistency 

determination only applied to NWP 

authorizations for activities that are 

within, or affect, any land, water uses or 

natural resources of a State’s coastal 

zone. A state’s coastal zone management 

plan may identify geographic areas in 

federal waters on the outer continental 

shelf, where activities that require 

federal permits conducted in those areas 

require consistency certification from 

the state because they affect any coastal 

use or resource. In its coastal zone 

management plan, the state may include 

an outer continental shelf plan. An 

outer continental shelf plan is a plan for 

‘‘the exploration or development of, or 

production from, any area which has 

been leased under the Outer Continental 

Shelf Lands Act’’ and regulations issued 

under that Act (see 15 CFR 930.73). 

Activities requiring federal permits that 

are not identified in the state’s outer 

continental shelf plan are considered 

unlisted activities. If the state wants to 

review an unlisted activity under the 

CZMA, then it must notify the applicant 

and the federal permitting agency that it 

intends to review the proposed activity. 

Nationwide permit authorizations for 

activities that are not within or would 

not affect a state’s coastal zone do not 

require the Corps’ CZMA consistency 

determinations and thus are not 

contingent on a State’s concurrence 

with the Corps’ consistency 

determinations. 

If a state objects to the Corps’ CZMA 

consistency determination for an NWP, 

then the affected activities are not 

authorized by an NWP within that state 

until a project proponent obtains an 

individual CZMA consistency 

concurrence, or sufficient time (i.e., six 

months) passes after requesting a CZMA 

consistency concurrence for the 

applicant to make a presumption of 

consistency, as provided in 33 CFR 

330.4(d)(6). However, when applicants 

request NWP verifications for activities 

that require individual consistency 

concurrences, and the Corps determines 

that those activities meet the terms and 

conditions of the NWP, in accordance 

2854 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

5 Institute for Water Resources (IWR). 2001. Cost 

analysis for the 2000 issuance and modification of 

nationwide permits. Institute for Water Resources 

(Alexandria, VA). 29 pp. plus appendices. 

with 33 CFR 330.6(a)(3)(iii) the Corps 

will issue provisional NWP verification 

letters. The provisional verification 

letter will contain general and regional 

conditions as well as any activityspecific conditions the Corps 

determines are necessary for the NWP 

authorization. The Corps will notify the 

applicant that he or she must obtain an 

activity-specific CZMA consistency 

concurrence or a presumption of 

concurrence before he or she is 

authorized to start work in waters of the 

United States. That is, NWP 

authorization will be contingent upon 

obtaining the necessary CZMA 

consistency concurrence from the state, 

or a presumption of concurrence. 

Anyone wanting to perform such 

activities where pre-construction 

notification to the Corps is not required 

has an affirmative responsibility to 

present a CZMA consistency 

determination to the appropriate state 

agency for concurrence. Upon 

concurrence with such CZMA 

consistency determinations by the state, 

the activity would be authorized by the 

NWP. This requirement is provided at 

33 CFR 330.4(d). 

In response to the 2020 proposal 

several commenters said that the Corps 

is providing a CZMA federal 

consistency determination for the 

proposed rule and is asking the states to 

concur with a federal action that is not 

final. These commenters said that if 

there are changes in the final NWPs, 

those changes may result in missing or 

inappropriate conditions and leave 

states with no opportunity to remedy 

deficiencies. Several commenters stated 

that the Corps should have allowed 

comment on the proposed rule prior to 

initiating the federal consistency review 

process. A few commenters said there is 

a disconnect between the 60-days 

allowed for water quality certifications 

and the 90-days allowed for CZMA 

consistency reviews. One commenter 

requested an extension of time until 

mid-January 2021 for the state to 

complete its review and make its 

determinations. 

The CZMA consistency concurrence 

process for the issuance of the NWPs 

must be completed before the final 

NWPs are issued. The Department of 

Commerce’s CZMA regulations at 15 

CFR 930.36(b)(1) state that the federal 

agency’s consistency determination 

shall be provided to state agencies at 

least 90 days before final approval of the 

federal agency’s activity unless both the 

federal agency and the state agency 

agree to an alternative notification 

schedule. Therefore, the CZMA 

consistency concurrence process must 

be completed before the Corps issues 

the final NWPs. If the Corps were to 

make substantial changes to the 

proposed NWPs, then the Corps would 

conduct supplemental coordination 

with the states. In these 16 final NWPs, 

the Corps did not make any substantial 

changes that would trigger 

supplemental coordination with states. 

The Corps acknowledges that under 15 

CFR 930.41(a), it could have requested 

responses from state agencies within 60 

days of receipt of the Corps’ consistency 

determination and supporting 

information. Under 15 CFR 930.41(b), 

federal agencies are required to approve 

one extension period of 15 days or less, 

if the state agency requests an extension 

of time within the 60-day review period. 

The WQC and CZMA consistency 

concurrence review periods are different 

because they are governed by different 

regulations. 

IV. Economic Impact 

The NWPs are expected to increase 

the number of activities eligible for 

NWP authorization, and reduce the 

number of activities that require 

individual permits. The Corps estimates 

that the proposed NWPs will authorize 

an 209 activities each year that would 

have otherwise required an individual 

permit. While applying for a NWP may 

entail some burden (namely, in the form 

of a PCN, when applicable), by 

authorizing more activities by NWP, this 

proposal will reduce net burden for the 

regulated public. Specifically, 

increasing the number of activities that 

can be authorized by NWPs is expected 

to decrease compliance costs for permit 

applicants since, as discussed below, 

the compliance costs for obtaining NWP 

authorization are less than the 

compliance costs for obtaining 

individual permits. In addition, the 

NWPs can incentivize some project 

proponents to design their projects in 

such a way that they would qualify for 

a NWP thereby reducing impacts to 

jurisdictional waters and wetlands. In 

FY2018, the average time to receive an 

NWP verification was 45 days from the 

date the Corps district receives a 

complete PCN, compared to 264 days to 

receive a standard individual permit 

after receipt of a complete permit 

application (see table 1.2 of the 

regulatory impact analysis for this final 

rule, which is available in the 

www.regulations.gov docket (docket 

number COE–2020–0002)). 

As discussed in the Regulatory Impact 

Analysis for this proposed rule, the 

Corps estimates that a permit 

applicant’s compliance cost for 

obtaining NWP authorization in 2019$ 

ranges from $4,412 to $14,705 (Institute 

for Water Resources (2001),5 adjusted 

for inflation using the GDP deflator 

approach). The Corps estimates that a 

permit applicant’s compliance costs for 

obtaining an individual permit for a 

proposed activity impacting up to 3 

acres of wetland ranges from $17,646 to 

$35,293 in 2019$. Considering how the 

proposed NWPs will increase the 

number of activities authorized by an 

NWP each year, the Corps estimates that 

the 16 final NWPs, when compared with 

the 2017 NWPs, will decrease 

compliance costs for the regulated 

public by approximately $3 million per 

year. The Corps invited comment on the 

assumptions and methodology used to 

calculate the compliance costs and 

burden in general associated with the 

NWP and received no comments. 

Nationwide permit(s) Changes Anticipated impacts 

• NWP 21 ..........................................................

• NWP 29. 

• NWP 39. 

• NWP 40. 

• NWP 42. 

• NWP 43. 

• NWP 44. 

• NWP 50. 

• NWP 51. 

• NWP 52. 

Removed 300 linear foot limit for losses of 

stream bed and rely on 1⁄2-acre limit, preconstruction notification (PCN) review process, and other tools to comply with Clean 

Water Act Section 404(e).

Increase number of activities authorized by an 

NWP; decrease number of activities requiring individual permits. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2855 

Nationwide permit(s) Changes Anticipated impacts 

• NWP 12 ..........................................................

• NWP 57. 

• NWP 58. 

Issued separate NWPs for oil or natural gas 

pipeline activities, electric utility line and 

telecommunications activities, and utility 

lines for water and other substances; reduced number of PCN thresholds.

No change in number of NWP authorizations. 

• NWP 21 ..........................................................

• NWP 49. 

• NWP 50. 

Removed requirement for written authorization 

before commencing authorized activity.

No change in number of NWP authorizations. 

• NWP 48 .......................................................... Changed PCN threshold to require PCNs for 

activities directly impacting more than 1⁄2- 

acre of submerged aquatic vegetation. Removed 1⁄2-acre limit for impacts to submerged aquatic vegetation.

Increased number of activities authorized by 

an NWP; decreased number of activities requiring individual permits. 

• NWP 55 .......................................................... Issued new NWP to authorize seaweed 

mariculture activities and multi-trophic 

mariculture activities.

Increased number of activities authorized by 

an NWP; decreased number of activities requiring individual permits. 

• NWP 56 .......................................................... Issued new NWP to authorize finfish 

mariculture activities and multi-trophic 

mariculture activities.

Increased number of activities authorized by 

an NWP; decreased number of activities requiring individual permits. 

• General condition 17, tribal rights .................. Restored text of general condition in 2012 

NWPs.

No change in number of NWP authorizations. 

• General condition 18, endangered species .... Revised to address 2019 changes to 50 CFR 

part 402. Clarified PCN requirements for 

species proposed for listing and proposed 

critical habitat to be consistent with 33 CFR 

330.4(f)(2).

No change in number of NWP authorizations. 

• General condition 23, mitigation ..................... Added 3⁄100-acre threshold for compensatory 

mitigation for losses of stream bed.

No change in number of NWP authorizations. 

• General condition 25, water quality ................ Clarified that if NWP activity does not comply 

with conditions of a general water quality 

certification, an individual certification is required, unless a waiver occurs. Require 

permittee to provide district engineer with 

copy of water quality certification for individual discharge authorized by an NWP.

No change in number of NWP authorizations. 

• General condition 26, coastal zone management.Clarified that if NWP activity does not comply 

with conditions of a general consistency 

concurrence, and individual consistency 

concurrence is required, unless presumption occurs.

No change in number of NWP authorizations. 

• General condition 28, use of multiple NWPs Modified general condition to clarify application to NWPs with different numeric limits.No change in number of NWP authorizations. 

• General condition 32, pre-construction notification.Modified to encourage use of Form ENG 

6082 for NWP pre-construction notifications.

No change in number of NWP authorizations. 

Several commenters stated that the 

Corps’ Regulatory Impact Analysis 

should include estimates of costs to the 

public due to losses of wetland and 

stream functions and losses of 

ecosystem services caused by activities 

authorized by NWPs. These commenters 

also said the Regulatory Impact Analysis 

should address flooding that is 

exacerbated by development in and 

around stream and wetland habitats. In 

addition, these commenters stated that 

the Regulatory Impact Analysis should 

evaluate the effect the proposed 1⁄10-acre 

threshold for stream mitigation in 

general condition 23 would have in 

terms of a reduction in stream 

compensatory mitigation for NWP 

activities, and increases in losses of 

headwater streams. These commenters 

also stated that the Corps should 

analyze the effects of removing the PCN 

threshold for mechanized land clearing 

of forested wetlands in oil or natural gas 

pipeline rights-of-way from NWP 12. 

Several commenters said the Regulatory 

Impact Analysis should also analyze the 

economic impacts of the 2020 Proposal 

on the ecological restoration industry. 

One commenter said that a cost-benefit 

analysis or reissuing the NWPs ahead of 

schedule should be performed. 

The Regulatory Impact Analysis 

prepared by the Corps for this final rule 

was prepared in accordance with the 

Office of Management and Budget’s 

(OMB) Circular A–4 and OMB’s 

Memorandum M–17–21 for 

implementing E.O. 13771. The 

Regulatory Impact Analysis provides 

some general information on the value 

of ecosystem services provided by 

general categories of aquatic resources 

that may be impacted by activities 

authorized by NWPs and thus result in 

some degree of loss of ecosystem 

services. Other activities authorized by 

NWPs (e.g., aquatic resource restoration 

and enhancement activities authorized 

by NWP 27 and the removal of low-head 

dams authorized by NWP 53) are 

generally expected to result in gains in 

some ecosystem services. Any 

consideration of ecosystem services lost 

as a result of activities authorized by 

NWPs must also take into account any 

gains in goods and services provided by 

activities authorized by NWPs or the 

operation of those activities, such as 

housing, food production, energy 

generation and transmission, 

transportation, public safety, providing 

potable water, removing sewage, etc. In 

the Regulatory Impact Analysis for this 

final rule, the Corps has added a general 

discussion of the goods and services 

that activities authorized by the NWPs 

provide for human well-being. 

Increases in downstream flooding are 

usually caused by development 

activities (e.g., the construction of 

houses, commercial buildings, 

2856 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

educational buildings, manufacturing 

buildings, roads, parking lots, etc.) that 

reduce the land area in a watershed 

where precipitation can infiltrate into 

the soil, and subsequently cause 

increases in surface runoff to 

downstream waters that increase the 

frequency and severity of flooding (NRC 

2009). Upland development activities 

provide a significant contribution to 

these changes in watershed hydrology, 

because wetlands and streams occupy a 

relatively small percentage of land area 

in a watershed (e.g., Zedler and Kercher 

et al. 2005, Butman and Raymond 2011). 

State and local government agencies 

may require developers to construct 

stormwater management facilities and 

green infrastructure (e.g., rain gardens) 

to provide water storage and water 

infiltration within the watershed to 

reduce potential changes in downstream 

flooding. 

Stream compensatory mitigation was 

added to the mitigation general 

condition for the NWPs in 2007 (see 

general condition 20 in the 2007 NWP 

final rule at 72 FR 11193). That general 

condition did not have an acreage-based 

or linear foot based threshold for stream 

mitigation. In the 2012 and 2017 final 

rules for the issuance and reissuance of 

the NWPs (77 FR 10184 and 82 FR 1860, 

respectively), there was no acreagebased or linear foot based threshold for 

stream mitigation. Under the 2007, 

2012, and 2017 NWPs, district engineers 

determined on a case-by-case basis 

whether stream compensatory 

mitigation is required for an NWP 

activity. The 2020 Proposal is the first 

time the Corps proposed a threshold in 

the mitigation general condition for the 

NWPs for stream compensatory 

mitigation. In response to comments 

received on the 2020 Proposal, the 

Corps changed the proposed 1⁄10-acre 

stream mitigation threshold to 3⁄100-acre 

to be consistent with the current 

practices of numerous Corps districts for 

when they require stream compensatory 

mitigation for proposed NWP activities. 

Therefore, the changes to general 

condition 23 are not expected to reduce 

stream compensatory mitigation for 

NWP or have substantive economic 

impacts on the compensatory mitigation 

industry. 

The removal of the PCN threshold in 

the 2017 NWP 12 for mechanized land 

clearing of a forested wetland in a utility 

line right-of-way will not eliminate 

compensatory mitigation requirements 

for those activities. If the impacts to 

forested wetlands caused by 

mechanized land clearing for an oil or 

natural gas pipeline right-of-way cannot 

be restored to pre-construction contours 

in waters of the United States, and there 

is a loss of greater than 1⁄10-acre of 

forested wetlands, then the project 

proponent is required to submit a PCN 

to the district engineer. The district 

engineer may require compensatory 

mitigation to offset those losses of 

waters of the United States. The district 

engineer may also require compensatory 

mitigation to offset losses of specific 

wetland functions (see paragraph (i) of 

general condition 23). 

The Corps does not believe it is 

necessary to prepare a cost-benefit 

analysis for reissuing the NWPs earlier 

than many of the users of the NWPs 

expected. One of the reasons the Corps 

is conducting this rulemaking is to 

address recent court decisions. 

V. Administrative Requirements 

Plain Language 

In compliance with the principles in 

the President’s Memorandum of June 1, 

1998, (63 FR 31885, June 10, 1998) 

regarding plain language, this preamble 

is written using plain language. In 

writing this final rule, the Corps used 

the active voice, short sentences, and 

common everyday terms except for 

necessary technical terms. 

Paperwork Reduction Act 

The paperwork burden associated 

with the NWP relates exclusively to the 

preparation of the PCN. While different 

NWPs require that different information 

be included in a PCN, the Corps 

estimates that a PCN takes, on average, 

11 hours to complete. The 16 final 

NWPs would decrease the total 

paperwork burden associated with this 

program because the Corps estimates 

that under this final rule 59 more PCNs 

would be required each year. This 

increase is due to the number of 

activities that would be authorized 

under the 16 NWPs that previously 

required individual permits, and the 

changes in the PCN thresholds for NWP 

48 for commercial shellfish mariculture 

activities and the modified PCN 

thresholds for NWP 12 (oil and natural 

gas pipeline activities). The paperwork 

burden associated with the 16 final 

NWPs is expected to increase by 

approximately 99 hours per year from 

160,677 hours to 160,776 hours. 

The following table summarizes the 

projected changes in paperwork burden 

from the 2017 NWPs to the 16 NWPs 

issued in this final rule. 

Number of NWP 

PCNs per year 

Number of NWP 

activities not 

requiring PCNs 

per year 

Estimated 

changes in NWP 

PCNs per year 

Estimated 

changes in 

number of 

authorized NWP 

activities 

Estimated 

changes in 

number of 

standard 

individual 

permits per year 

2017 NWPs ............................................ 14,607 2,655 .............................. .............................. ..............................

16 NWPs ................................................ 14,616 2,855 +591 +209 ¥209 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. For the Corps 

Regulatory Program under section 10 of 

the Rivers and Harbors Act of 1899, 

Section 404 of the Clean Water Act, and 

section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, 

the current OMB approval number for 

information collection requirements is 

maintained by the Corps of Engineers 

(OMB approval number 0710–0003). 

Executive Order 12866 

This action is a significant regulatory 

action under Executive Order 12866 (58 

FR 51735, October 4, 1993) that was 

submitted to the Office of Management 

and Budget (OMB) for review. 

Executive Order 13771 

This final rule is considered an E.O. 

13771 deregulatory action. Details on 

the estimated cost savings can be found 

in the rule’s economic analysis. 

Executive Order 13132 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the Corps to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The issuance and 

modification of NWPs does not have 

federalism implications. The Corps does 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2857 

not believe that the final NWPs will 

have substantial direct effects on the 

states, on the relationship between the 

federal government and the states, or on 

the distribution of power and 

responsibilities among the various 

levels of government. These NWPs will 

not impose any additional substantive 

obligations on state or local 

governments. Therefore, Executive 

Order 13132 does not apply to this 

proposal. 

Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 601 et seq. 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice-and-comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the proposed rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of the issuance and modification of 

NWPs on small entities, a small entity 

is defined as: (1) A small business based 

on Small Business Administration size 

standards; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; or (3) a small organization 

that is any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field. 

The statues under which the Corps 

issues, reissues, or modifies NWPs are 

Section 404(e) of the Clean Water Act 

(33 U.S.C. 1344(e)) and section 10 of the 

Rivers and Harbors Act of 1899 (33 

U.S.C. 403). Under section 404, 

Department of the Army (DA) permits 

are required for discharges of dredged or 

fill material into waters of the United 

States. Under section 10, DA permits are 

required for any structures or other 

work that affect the course, location, or 

condition of navigable waters of the 

United States. Small entities proposing 

to discharge dredged or fill material into 

waters of the United States and/or 

install structures or conduct work in 

navigable waters of the United States 

must obtain DA permits to conduct 

those activities, unless a particular 

activity is exempt from those permit 

requirements. Individual permits and 

general permits can be issued by the 

Corps to satisfy the permit requirements 

of these two statutes. Nationwide 

permits are a form of general permit 

issued by the Chief of Engineers. 

Nationwide permits automatically 

expire and become null and void if they 

are not modified or reissued within five 

years of their effective date (see 33 CFR 

330.6(b)). Furthermore, section 404(e) of 

the Clean Water Act states that general 

permits, including NWPs, can be issued 

for no more than five years. If the 2017 

NWPs are not modified or reissued, they 

will expire on March 18, 2022, and 

small entities and other project 

proponents would be required to obtain 

alternative forms of DA permits (i.e., 

standard permits, letters of permission, 

or regional general permits) for activities 

involving discharges of dredged or fill 

material into waters of the United States 

or structures or work in navigable 

waters of the United States. Regional 

general permits that authorize similar 

activities as the NWPs may be available 

in some geographic areas, but small 

entities conducting regulated activities 

outside those geographic areas would 

have to obtain individual permits for 

activities that require DA permits. 

When compared with the compliance 

costs for individual permits, most of the 

terms and conditions of the NWPs are 

expected to result in decreases in the 

costs of complying with the permit 

requirements of sections 10 and 404. 

The anticipated decrease in compliance 

cost results from the lower cost of 

obtaining NWP authorization instead of 

standard permits. Unlike standard 

permits, NWPs authorize activities 

without the requirement for public 

notice and comment on each proposed 

activity. 

Another requirement of section 404(e) 

of the Clean Water Act is that general 

permits, including NWPs, authorize 

only those activities that result in no 

more than minimal adverse 

environmental effects, individually and 

cumulatively. The terms and conditions 

of the NWPs, such as acreage limits and 

the mitigation measures in some of the 

NWP general conditions, are imposed to 

ensure that the NWPs authorize only 

those activities that result in no more 

than minimal adverse effects on the 

aquatic environment and other public 

interest review factors. 

After considering the economic 

impacts of the NWPs on small entities, 

I certify that this action will not have a 

significant impact on a substantial 

number of small entities. Small entities 

may obtain required DA authorizations 

through the NWPs, in cases where there 

are applicable NWPs authorizing those 

activities and the proposed work will 

result in only minimal adverse effects 

on the aquatic environment and other 

public interest review factors. The terms 

and conditions of the revised NWPs will 

not impose substantially higher costs on 

small entities than those of the existing 

NWPs. If an NWP is not available to 

authorize a particular activity, then 

another form of DA authorization, such 

as an individual permit or a regional 

general permit authorization, must be 

secured. However, as noted above, the 

Corps estimates an increase in the 

number of activities than can be 

authorized through NWPs, because the 

Corps made some modifications to the 

NWPs to authorize additional activities. 

Because those activities required 

authorization through other forms of DA 

authorization (e.g., individual permits 

or regional general permits) the Corps 

expects a concurrent decrease in the 

numbers of individual permit and 

regional general permit authorizations 

required for these activities. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

the agencies generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘federal mandates’’ that may 

result in expenditures to state, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating a rule for which a written 

statement is needed, section 205 of the 

UMRA generally requires the agencies 

to identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows an agency 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation why that alternative was 

not adopted. Before an agency 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed, 

under section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of regulatory proposals 

with significant federal 

2858 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The Corps has determined that the 

NWPs do not contain a federal mandate 

that may result in expenditures of $100 

million or more for state, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. The 

NWPs are generally consistent with 

current agency practice, do not impose 

new substantive requirements and 

therefore do not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

Therefore, this final rule is not subject 

to the requirements of sections 202 and 

205 of the UMRA. For the same reasons, 

the Corps has determined that the NWPs 

contain no regulatory requirements that 

might significantly or uniquely affect 

small governments. Therefore, the 

issuance and modification of NWPs is 

not subject to the requirements of 

section 203 of UMRA. 

Executive Order 13045 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

we have reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

we must evaluate the environmental 

health or safety effects of the proposed 

rule on children and explain why the 

regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives. 

The NWPs are not subject to this 

Executive Order because they are not 

economically significant as defined in 

Executive Order 12866. In addition, the 

proposed NWPs do not concern an 

environmental health or safety risk that 

the Corps has reason to believe may 

have a disproportionate effect on 

children. 

Executive Order 13175 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires 

agencies to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by tribal officials in the 

development of regulatory policies that 

have tribal implications.’’ The phrase 

‘‘policies that have tribal implications’’ 

is defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on one or 

more Tribes, on the relationship 

between the federal government and the 

Tribes, or on the distribution of power 

and responsibilities between the federal 

government and Tribes.’’ 

The issuance of these NWPs is 

generally consistent with current agency 

practice and will not have substantial 

direct effects on tribal governments, on 

the relationship between the federal 

government and the tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and tribes. Therefore, 

Executive Order 13175 does not apply 

to this final rule. However, in the spirit 

of Executive Order 13175, the Corps 

specifically requested comments from 

tribal officials on the proposed rule. 

Their comments were fully considered 

during the preparation of this final rule. 

Each Corps district conducted 

government-to-government consultation 

with tribes, to identify regional 

conditions, other local NWP 

modifications to protect aquatic 

resources of interest to tribes, and 

coordination procedures with tribes, as 

part of the Corps’ responsibility to 

protect tribal trust resources and fulfill 

its tribal trust responsibilities. 

Many commenters stated that they 

disagreed with the Corps’ determination 

that the proposal to reissue and issue 

the NWPs would not have substantial 

direct effects on tribal governments, on 

the relationship between the federal 

government and the tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and tribes. Most of these 

commenters said that the Corps is 

required to consult and coordinate with 

the tribes on the proposed rule. Many 

commenters stated that meaningful 

consultation with tribes is not possible 

given the short time frames set by the 

administration, lack of information, and 

complications resulting from the COVID 

pandemic. One commenter stated that 

the Corps should extend its comment 

period 60 days or should withdraw its 

proposal to allow early tribal 

engagement. 

While the NWPs are regulations, the 

Corps believe the final NWPs will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the federal government and the 

tribes, or on the distribution of power 

and responsibilities between the federal 

government and tribes. In response to 

the proposed rule, the Corps received 

comments from 35 tribes and tribal 

organizations. The Corps has taken, and 

will continue to take, measures (such as 

Corps districts consulting with tribes on 

specific NWP activities that may have 

adverse effects on tribal rights and tribal 

trust resources) to ensure that the NWPs 

will not have substantial direct effects 

on tribal governments, on the 

relationship between the federal 

government and the tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and tribes. General 

condition 17 has been modified to state 

that no NWP activity or its operation 

may impair reserved tribal rights, 

including, but not limited to, reserved 

water rights and treaty fishing and 

hunting rights. Tribes use NWPs for 

activities they conduct that require DA 

authorization under section 404 of the 

Clean Water Act and/or section 10 of the 

Rivers and Harbors Act of 1899. For 

example, tribes that conduct 

commercial shellfish mariculture 

activities have used NWP 48, and tribes 

that conduct aquatic habitat restoration 

activities have used NWP 27. 

For 16 NWPs issued in this final rule, 

Corps districts conducted consultations 

with tribes to identify regional 

conditions to ensure that NWP activities 

comply with general conditions 17 and 

20. Through those consultations, district 

engineers can also develop coordination 

procedures with tribes to provide tribes 

with opportunities to review proposed 

NWP activities and provide their views 

on whether those activities will cause 

more than minimal adverse effects on 

tribal rights (including treaty rights), 

protected tribal resources, or tribal 

lands. When a Corps district receives a 

pre-construction notification that 

triggers a need to consult with one or 

more tribes, that consultation will be 

completed before the district engineer 

makes his or her decision on whether to 

issue the NWP verification. If, after 

considering mitigation, the district 

engineer determines the proposed NWP 

activity will have more than minimal 

adverse effects on tribal rights 

(including treaty rights), protected tribal 

resources, or tribal lands, he or she will 

exercise discretionary authority and 

require an individual permit. Division 

engineers can modify, suspend, or 

revoke one or more NWPs in a region to 

protect tribal rights. A district engineer 

can modify, suspend, or revoke an NWP 

to protect tribal rights, protected tribal 

resources, and tribal lands. 

For the 2020 Proposal, the Corps 

provided a 60-day public comment 

period, which is consistent with the 

length of the comment period provided 

for past NWP rulemaking efforts. After 

the comment period for the 2020 

Proposal ended on November 16, 2020, 

there was some additional time for 

Corps districts to conduct consultation 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2859 

and coordination with tribes. For Corps 

district consultation and coordination 

with tribes, the Corps provided 

information similar to the information 

provided during past NWP rulemaking 

efforts. The Corps acknowledges that the 

pandemic complicated tribal 

consultation and coordination activities, 

but the rulemaking effort needed to be 

completed by the required time frame. 

Environmental Documentation 

A decision document has been 

prepared for each of the 16 NWPs being 

issued in this final rule. Each decision 

document includes an environmental 

assessment and public interest review 

determination. If an NWP authorizes 

discharges of dredged or fill material 

into waters of the United States, the 

decision document includes a 404(b)(1) 

Guidelines analysis. These decision 

documents are available at: 

www.regulations.gov (docket ID number 

COE–2020–0002). They are also 

available by contacting Headquarters, 

U.S. Army Corps of Engineers, 

Operations and Regulatory Community 

of Practice, 441 G Street NW, 

Washington, DC 20314–1000. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The Corps will 

submit a report containing the final 16 

NWPs and other required information to 

the U.S. Senate, the U.S. House of 

Representatives, and the Government 

Accountability Office. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

The 16 NWPs are not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2), because they 

are not likely to result in: (1) An annual 

effect on the economy of $100,000,000 

or more; (2) a major increase in costs or 

prices for consumers, individual 

industries, federal, state, or local 

government agencies, or geographic 

regions; or (3) significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

Executive Order 12898 

Executive Order 12898 requires that, 

to the greatest extent practicable and 

permitted by law, each federal agency 

must make achieving environmental 

justice part of its mission. Executive 

Order 12898 provides that each federal 

agency conduct its programs, policies, 

and activities that substantially affect 

human health or the environment in a 

manner that ensures that such programs, 

policies, and activities do not have the 

effect of excluding persons (including 

populations) from participation in, 

denying persons (including 

populations) the benefits of, or 

subjecting persons (including 

populations) to discrimination under 

such programs, policies, and activities 

because of their race, color, or national 

origin. 

The NWPs are not expected to have 

any discriminatory effect or 

disproportionate negative impact on any 

community or group, and therefore are 

not expected to cause any 

disproportionately high and adverse 

impacts to minority or low-income 

communities. 

Executive Order 13211 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy 

and has not otherwise been designated 

by the OIRA Administrator as a 

significant energy action. 

VI. References 

A complete list of all references cited 

in this document is available on the 

internet at http://www.regulations.gov 

in docket number COE–2020–0002 or 

upon request from the U.S. Army Corps 

of Engineers (see FOR FURTHER

INFORMATION CONTACT). 

Authority 

The Corps is reissuing 12 existing 

NWPs and issuing 4 new NWPs under 

the authority of Section 404(e) of the 

Clean Water Act (33 U.S.C. 1344(e)) and 

Section 10 of the Rivers and Harbors Act 

of 1899 (33 U.S.C. 401 et seq.). 

William H. Graham, 

Major General, U.S. Army, Deputy 

Commanding General for Civil and 

Emergency Operations. 

Nationwide Permits, Conditions, 

Further Information, and Definitions 

A. Index of Nationwide Permits, 

Conditions, District Engineer’s Decision, 

Further Information, and Definitions 

Nationwide Permits 

12. Oil or Natural Gas Pipeline 

Activities 

21. Surface Coal Mining Activities 

29. Residential Developments 

39. Commercial and Institutional 

Developments 

40. Agricultural Activities 

42. Recreational Facilities 

43. Stormwater Management Facilities 

44. Mining Activities 

48. Commercial Shellfish Mariculture 

Activities 

50. Underground Coal Mining Activities 

51. Land-Based Renewable Energy 

Generation Facilities 

52. Water-Based Renewable Energy 

Generation Pilot Projects 

55. Seaweed Mariculture Activities 

56. Finfish Mariculture Activities 

57. Electric Utility Line and 

Telecommunications Activities 

58. Utility Line Activities for Water and 

Other Substances 

Nationwide Permit General Conditions 

1. Navigation 

2. Aquatic Life Movements 

3. Spawning Areas 

4. Migratory Bird Breeding Areas 

5. Shellfish Beds 

6. Suitable Material 

7. Water Supply Intakes 

8. Adverse Effects from Impoundments 

9. Management of Water Flows 

10. Fills Within 100-Year Floodplains 

11. Equipment 

12. Soil Erosion and Sediment Controls 

13. Removal of Temporary Fills 

14. Proper Maintenance 

15. Single and Complete Project 

16. Wild and Scenic Rivers 

17. Tribal Rights 

18. Endangered Species 

19. Migratory Birds and Bald and 

Golden Eagles 

20. Historic Properties 

21. Discovery of Previously Unknown 

Remains and Artifacts 

22. Designated Critical Resource Waters 

23. Mitigation 

24. Safety of Impoundment Structures 

25. Water Quality 

26. Coastal Zone Management 

27. Regional and Case-by-Case 

Conditions 

28. Use of Multiple Nationwide Permits 

29. Transfer of Nationwide Permit 

Verifications 

30. Compliance Certification 

31. Activities Affecting Structures or 

Works Built by the United States 

32. Pre-Construction Notification 

District Engineer’s Decision 

Further Information 

Definitions 

Best management practices (BMPs) 

Compensatory mitigation 

Currently serviceable 

Direct effects 

Discharge 

Ecological reference 

Enhancement 

Establishment (creation) 

2860 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

High Tide Line 

Historic property 

Independent utility 

Indirect effects 

Loss of waters of the United States 

Navigable waters 

Non-tidal wetland 

Open water 

Ordinary high water mark 

Perennial stream 

Practicable 

Pre-construction notification 

Preservation 

Re-establishment 

Rehabilitation 

Restoration 

Riffle and pool complex 

Riparian areas 

Shellfish seeding 

Single and complete linear project 

Single and complete non-linear project 

Stormwater management 

Stormwater management facilities 

Stream bed 

Stream channelization 

Structure 

Tidal wetland 

Tribal lands 

Tribal rights 

Vegetated shallows 

Waterbody 

B. Nationwide Permits 

12. Oil or Natural Gas Pipeline 

Activities. Activities required for the 

construction, maintenance, repair, and 

removal of oil and natural gas pipelines 

and associated facilities in waters of the 

United States, provided the activity 

does not result in the loss of greater than 

1⁄2-acre of waters of the United States for 

each single and complete project. 

Oil or natural gas pipelines: This 

NWP authorizes discharges of dredged 

or fill material into waters of the United 

States and structures or work in 

navigable waters for crossings of those 

waters associated with the construction, 

maintenance, or repair of oil and natural 

gas pipelines. There must be no change 

in pre-construction contours of waters 

of the United States. An ‘‘oil or natural 

gas pipeline’’ is defined as any pipe or 

pipeline for the transportation of any 

form of oil or natural gas, including 

products derived from oil or natural gas, 

such as gasoline, jet fuel, diesel fuel. 

heating oil, petrochemical feedstocks, 

waxes, lubricating oils, and asphalt. 

Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided the 

material is not placed in such a manner 

that it is dispersed by currents or other 

forces. The district engineer may extend 

the period of temporary side casting for 

no more than a total of 180 days, where 

appropriate. In wetlands, the top 6 to 12 

inches of the trench should normally be 

backfilled with topsoil from the trench. 

The trench cannot be constructed or 

backfilled in such a manner as to drain 

waters of the United States (e.g., 

backfilling with extensive gravel layers, 

creating a french drain effect). Any 

exposed slopes and stream banks must 

be stabilized immediately upon 

completion of the utility line crossing of 

each waterbody. 

Oil or natural gas pipeline 

substations: This NWP authorizes the 

construction, maintenance, or 

expansion of substation facilities (e.g., 

oil or natural gas or gaseous fuel 

custody transfer stations, boosting 

stations, compression stations, metering 

stations, pressure regulating stations) 

associated with an oil or natural gas 

pipeline in non-tidal waters of the 

United States, provided the activity, in 

combination with all other activities 

included in one single and complete 

project, does not result in the loss of 

greater than 1⁄2-acre of waters of the 

United States. This NWP does not 

authorize discharges of dredged or fill 

material into non-tidal wetlands 

adjacent to tidal waters of the United 

States to construct, maintain, or expand 

substation facilities. 

Foundations for above-ground oil or 

natural gas pipelines: This NWP 

authorizes the construction or 

maintenance of foundations for aboveground oil or natural gas pipelines in all 

waters of the United States, provided 

the foundations are the minimum size 

necessary. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of oil or 

natural gas pipelines, in non-tidal 

waters of the United States, provided 

the activity, in combination with all 

other activities included in one single 

and complete project, does not cause the 

loss of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters for 

access roads. Access roads must be the 

minimum width necessary (see Note 2, 

below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize oil or 

natural gas pipelines in or affecting 

navigable waters of the United States 

even if there is no associated discharge 

of dredged or fill material (see 33 CFR 

part 322). Oil or natural gas pipelines 

routed in, over, or under section 10 

waters without a discharge of dredged 

or fill material may require a section 10 

permit. 

This NWP authorizes, to the extent 

that Department of the Army 

authorization is required, temporary 

structures, fills, and work necessary for 

the remediation of inadvertent returns 

of drilling fluids to waters of the United 

States through sub-soil fissures or 

fractures that might occur during 

horizontal directional drilling activities 

conducted for the purpose of installing 

or replacing oil or natural gas pipelines. 

These remediation activities must be 

done as soon as practicable, to restore 

the affected waterbody. District 

engineers may add special conditions to 

this NWP to require a remediation plan 

for addressing inadvertent returns of 

drilling fluids to waters of the United 

States during horizontal directional 

drilling activities conducted for the 

purpose of installing or replacing oil or 

natural gas pipelines. 

This NWP also authorizes temporary 

structures, fills, and work, including the 

use of temporary mats, necessary to 

conduct the oil or natural gas pipeline 

activity. Appropriate measures must be 

taken to maintain normal downstream 

flows and minimize flooding to the 

maximum extent practicable, when 

temporary structures, work, and 

discharges of dredged or fill material, 

including cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. After construction, temporary 

fills must be removed in their entirety 

and the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) A section 

10 permit is required; (2) the discharge 

will result in the loss of greater than 1⁄10- 

acre of waters of the United States; or 

(3) the proposed oil or natural gas 

pipeline activity is associated with an 

overall project that is greater than 250 

miles in length and the project purpose 

is to install new pipeline (vs. conduct 

repair or maintenance activities) along 

the majority of the distance of the 

overall project length. If the proposed 

oil or gas pipeline is greater than 250 

miles in length, the pre-construction 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2861 

notification must include the locations 

and proposed impacts (in acres or other 

appropriate unit of measure) for all 

crossings of waters of the United States 

that require DA authorization, including 

those crossings authorized by an NWP 

would not otherwise require preconstruction notification. (See general 

condition 32.) (Authorities: Sections 10 

and 404) 

Note 1: Where the oil or natural gas 

pipeline is constructed, installed, or 

maintained in navigable waters of the 

United States (i.e., section 10 waters) 

within the coastal United States, the 

Great Lakes, and United States 

territories, a copy of the NWP 

verification will be sent by the Corps to 

the National Oceanic and Atmospheric 

Administration (NOAA), National 

Ocean Service (NOS), for charting the 

oil or natural gas pipeline to protect 

navigation. 

Note 2: For oil or natural gas pipeline 

activities crossing a single waterbody 

more than one time at separate and 

distant locations, or multiple 

waterbodies at separate and distant 

locations, each crossing is considered a 

single and complete project for purposes 

of NWP authorization. Oil or natural gas 

pipeline activities must comply with 33 

CFR 330.6(d). 

Note 3: Access roads used for both 

construction and maintenance may be 

authorized, provided they meet the 

terms and conditions of this NWP. 

Access roads used solely for 

construction of the oil or natural gas 

pipeline must be removed upon 

completion of the work, in accordance 

with the requirements for temporary 

fills. 

Note 4: Pipes or pipelines used to 

transport gaseous, liquid, liquescent, or 

slurry substances over navigable waters 

of the United States are considered to be 

bridges, and may require a permit from 

the U.S. Coast Guard pursuant to the 

General Bridge Act of 1946. However, 

any discharges of dredged or fill 

material into waters of the United States 

associated with such oil or natural gas 

pipelines will require a section 404 

permit (see NWP 15). 

Note 5: This NWP authorizes oil or 

natural gas pipeline maintenance and 

repair activities that do not qualify for 

the Clean Water Act section 404(f) 

exemption for maintenance of currently 

serviceable fills or fill structures. 

Note 6: For NWP 12 activities that 

require pre-construction notification, 

the PCN must include any other 

NWP(s), regional general permit(s), or 

individual permit(s) used or intended to 

be used to authorize any part of the 

proposed project or any related activity, 

including other separate and distant 

crossings that require Department of the 

Army authorization but do not require 

pre-construction notification (see 

paragraph (b)(4) of general condition 

32). The district engineer will evaluate 

the PCN in accordance with Section D, 

‘‘District Engineer’s Decision.’’ The 

district engineer may require mitigation 

to ensure that the authorized activity 

results in no more than minimal 

individual and cumulative adverse 

environmental effects (see general 

condition 23). 

21. Surface Coal Mining Activities. 

Discharges of dredged or fill material 

into waters of the United States 

associated with surface coal mining and 

reclamation operations, provided the 

following criteria are met: 

(a) The activities are already 

authorized, or are currently being 

processed by states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977 or by the Department of the 

Interior, Office of Surface Mining 

Reclamation and Enforcement; 

(b) The discharge must not cause the 

loss of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into tidal waters 

or non-tidal wetlands adjacent to tidal 

waters; and 

(c) The discharge is not associated 

with the construction of valley fills. A 

‘‘valley fill’’ is a fill structure that is 

typically constructed within valleys 

associated with steep, mountainous 

terrain, associated with surface coal 

mining activities. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer. (See general 

condition 32.) (Authorities: Sections 10 

and 404) 

29. Residential Developments. 

Discharges of dredged or fill material 

into non-tidal waters of the United 

States for the construction or expansion 

of a single residence, a multiple unit 

residential development, or a residential 

subdivision. This NWP authorizes the 

construction of building foundations 

and building pads and attendant 

features that are necessary for the use of 

the residence or residential 

development. Attendant features may 

include but are not limited to roads, 

parking lots, garages, yards, utility lines, 

storm water management facilities, 

septic fields, and recreation facilities 

such as playgrounds, playing fields, and 

golf courses (provided the golf course is 

an integral part of the residential 

development). 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. 

Subdivisions: For residential 

subdivisions, the aggregate total loss of 

waters of United States authorized by 

this NWP cannot exceed 1⁄2-acre. This 

includes any loss of waters of the 

United States associated with 

development of individual subdivision 

lots. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) (Authorities: Sections 10 

and 404) 

39. Commercial and Institutional 

Developments. Discharges of dredged or 

fill material into non-tidal waters of the 

United States for the construction or 

expansion of commercial and 

institutional building foundations and 

building pads and attendant features 

that are necessary for the use and 

maintenance of the structures. 

Attendant features may include, but are 

not limited to, roads, parking lots, 

garages, yards, utility lines, storm water 

management facilities, wastewater 

treatment facilities, and recreation 

facilities such as playgrounds and 

playing fields. Examples of commercial 

developments include retail stores, 

industrial facilities, restaurants, 

business parks, and shopping centers. 

Examples of institutional developments 

include schools, fire stations, 

government office buildings, judicial 

buildings, public works buildings, 

libraries, hospitals, and places of 

worship. The construction of new golf 

courses and new ski areas is not 

authorized by this NWP. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) (Authorities: Sections 10 

and 404) 

Note: For any activity that involves 

the construction of a wind energy 

generating structure, solar tower, or 

overhead transmission line, a copy of 

the PCN and NWP verification will be 

provided by the Corps to the 

Department of Defense Siting 

Clearinghouse, which will evaluate 

potential effects on military activities. 

40. Agricultural Activities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for 

agricultural activities, including the 

2862 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

construction of building pads for farm 

buildings. Authorized activities include 

the installation, placement, or 

construction of drainage tiles, ditches, 

or levees; mechanized land clearing; 

land leveling; the relocation of existing 

serviceable drainage ditches constructed 

in waters of the United States; and 

similar activities. 

This NWP also authorizes the 

construction of farm ponds in non-tidal 

waters of the United States, excluding 

perennial streams, provided the farm 

pond is used solely for agricultural 

purposes. This NWP does not authorize 

the construction of aquaculture ponds. 

This NWP also authorizes discharges 

of dredged or fill material into non-tidal 

jurisdictional waters of the United 

States to relocate existing serviceable 

drainage ditches constructed in nontidal streams. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) (Authority: Section 404) 

Note: Some discharges of dredged or 

fill material into waters of the United 

States for agricultural activities may 

qualify for an exemption under Section 

404(f) of the Clean Water Act (see 33 

CFR 323.4). This NWP authorizes the 

construction of farm ponds that do not 

qualify for the Clean Water Act section 

404(f)(1)(C) exemption because of the 

recapture provision at section 404(f)(2). 

42. Recreational Facilities. Discharges 

of dredged or fill material into non-tidal 

waters of the United States for the 

construction or expansion of 

recreational facilities. Examples of 

recreational facilities that may be 

authorized by this NWP include playing 

fields (e.g., football fields, baseball 

fields), basketball courts, tennis courts, 

hiking trails, bike paths, golf courses, 

ski areas, horse paths, nature centers, 

and campgrounds (excluding 

recreational vehicle parks). This NWP 

also authorizes the construction or 

expansion of small support facilities, 

such as maintenance and storage 

buildings and stables that are directly 

related to the recreational activity, but it 

does not authorize the construction of 

hotels, restaurants, racetracks, stadiums, 

arenas, or similar facilities. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) (Authority: Section 404) 

43. Stormwater Management 

Facilities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States for the construction of 

stormwater management facilities, 

including stormwater detention basins 

and retention basins and other 

stormwater management facilities; the 

construction of water control structures, 

outfall structures and emergency 

spillways; the construction of low 

impact development integrated 

management features such as 

bioretention facilities (e.g., rain 

gardens), vegetated filter strips, grassed 

swales, and infiltration trenches; and 

the construction of pollutant reduction 

green infrastructure features designed to 

reduce inputs of sediments, nutrients, 

and other pollutants into waters, such as 

features needed to meet reduction 

targets established under Total 

Maximum Daily Loads set under the 

Clean Water Act. 

This NWP authorizes, to the extent 

that a section 404 permit is required, 

discharges of dredged or fill material 

into non-tidal waters of the United 

States for the maintenance of 

stormwater management facilities, low 

impact development integrated 

management features, and pollutant 

reduction green infrastructure features. 

The maintenance of stormwater 

management facilities, low impact 

development integrated management 

features, and pollutant reduction green 

infrastructure features that are not 

waters of the United States does not 

require a section 404 permit. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. This 

NWP does not authorize discharges of 

dredged or fill material for the 

construction of new stormwater 

management facilities in perennial 

streams. 

Notification: For discharges of 

dredged or fill material into non-tidal 

waters of the United States for the 

construction of new stormwater 

management facilities or pollutant 

reduction green infrastructure features, 

or the expansion of existing stormwater 

management facilities or pollutant 

reduction green infrastructure features, 

the permittee must submit a preconstruction notification to the district 

engineer prior to commencing the 

activity. (See general condition 32.) 

Maintenance activities do not require 

pre-construction notification if they are 

limited to restoring the original design 

capacities of the stormwater 

management facility or pollutant 

reduction green infrastructure feature. 

(Authority: Section 404) 

44. Mining Activities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for mining 

activities, except for coal mining 

activities, provided the activity meets 

all of the following criteria: 

(a) For mining activities involving 

discharges of dredged or fill material 

into non-tidal jurisdictional wetlands, 

the discharge must not cause the loss of 

greater than 1⁄2-acre of non-tidal 

jurisdictional wetlands; 

(b) For mining activities involving 

discharges of dredged or fill material in 

non-tidal jurisdictional open waters 

(e.g., rivers, streams, lakes, and ponds) 

or work in non-tidal navigable waters of 

the United States (i.e., section 10 

waters), the mined area, including 

permanent and temporary impacts due 

to discharges of dredged or fill material 

into jurisdictional waters, must not 

exceed 1⁄2-acre; and 

(c) The acreage loss under paragraph 

(a) plus the acreage impact under 

paragraph (b) does not exceed 1⁄2-acre. 

This NWP does not authorize 

discharges of dredged or fill material 

into non-tidal wetlands adjacent to tidal 

waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) If reclamation is required 

by other statutes, then a copy of the 

final reclamation plan must be 

submitted with the pre-construction 

notification. (Authorities: Sections 10 

and 404) 

48. Commercial Shellfish Mariculture 

Activities. Structures or work in 

navigable waters of the United States 

and discharges of dredged or fill 

material into waters of the United States 

necessary for new and continuing 

commercial shellfish mariculture 

operations (i.e., the cultivation of 

bivalve molluscs such as oysters, 

mussels, clams, and scallops) in 

authorized project areas. For the 

purposes of this NWP, the project area 

is the area in which the operator is 

authorized to conduct commercial 

shellfish mariculture activities, as 

identified through a lease or permit 

issued by an appropriate state or local 

government agency, a treaty, or any 

easement, lease, deed, contract, or other 

legally binding agreement that 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2863 

establishes an enforceable property 

interest for the operator. 

This NWP authorizes the installation 

of buoys, floats, racks, trays, nets, lines, 

tubes, containers, and other structures 

into navigable waters of the United 

States. This NWP also authorizes 

discharges of dredged or fill material 

into waters of the United States 

necessary for shellfish seeding, rearing, 

cultivating, transplanting, and 

harvesting activities. Rafts and other 

floating structures must be securely 

anchored and clearly marked. 

This NWP does not authorize: 

(a) The cultivation of a nonindigenous 

species unless that species has been 

previously cultivated in the waterbody; 

(b) The cultivation of an aquatic 

nuisance species as defined in the 

Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990; or 

(c) Attendant features such as docks, 

piers, boat ramps, stockpiles, or staging 

areas, or the deposition of shell material 

back into waters of the United States as 

waste. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer if the activity 

directly affects more than 1⁄2-acre of 

submerged aquatic vegetation. If the 

operator will be conducting commercial 

shellfish mariculture activities in 

multiple contiguous project areas, he or 

she can either submit one PCN for those 

contiguous project areas or submit a 

separate PCN for each project area. (See 

general condition 32.) (Authorities: 

Sections 10 and 404) 

Note 1: The permittee should notify 

the applicable U.S. Coast Guard office 

regarding the project. 

Note 2: To prevent introduction of 

aquatic nuisance species, no material 

that has been taken from a different 

waterbody may be reused in the current 

project area, unless it has been treated 

in accordance with the applicable 

regional aquatic nuisance species 

management plan. 

Note 3: The Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 

1990 defines ‘‘aquatic nuisance species’’ 

as ‘‘a nonindigenous species that 

threatens the diversity or abundance of 

native species or the ecological stability 

of infested waters, or commercial, 

agricultural, aquacultural, or 

recreational activities dependent on 

such waters.’’ 

50. Underground Coal Mining 

Activities. Discharges of dredged or fill 

material into non-tidal waters of the 

United States associated with 

underground coal mining and 

reclamation operations provided the 

activities are authorized, or are 

currently being processed by the 

Department of the Interior, Office of 

Surface Mining Reclamation and 

Enforcement, or by states with approved 

programs under Title V of the Surface 

Mining Control and Reclamation Act of 

1977. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. This 

NWP does not authorize coal 

preparation and processing activities 

outside of the mine site. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer. (See general 

condition 32.) If reclamation is required 

by other statutes, then a copy of the 

reclamation plan must be submitted 

with the pre-construction notification. 

(Authorities: Sections 10 and 404) 

51. Land-Based Renewable Energy 

Generation Facilities. Discharges of 

dredged or fill material into non-tidal 

waters of the United States for the 

construction, expansion, or 

modification of land-based renewable 

energy production facilities, including 

attendant features. Such facilities 

include infrastructure to collect solar 

(concentrating solar power and 

photovoltaic), wind, biomass, or 

geothermal energy. Attendant features 

may include, but are not limited to 

roads, parking lots, and stormwater 

management facilities within the landbased renewable energy generation 

facility. 

The discharge must not cause the loss 

of greater than 1⁄2-acre of non-tidal 

waters of the United States. This NWP 

does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if the discharge 

results in the loss of greater than 1⁄10- 

acre of waters of the United States. (See 

general condition 32.) (Authorities: 

Sections 10 and 404) 

Note 1: Electric utility lines 

constructed to transfer the energy from 

the land-based renewable energy 

generation facility to a distribution 

system, regional grid, or other facility 

are generally considered to be linear 

projects and each separate and distant 

crossing of a waterbody is eligible for 

treatment as a separate single and 

complete linear project. Those electric 

utility lines may be authorized by NWP 

57 or another Department of the Army 

authorization. 

Note 2: If the only activities 

associated with the construction, 

expansion, or modification of a landbased renewable energy generation 

facility that require Department of the 

Army authorization are discharges of 

dredged or fill material into waters of 

the United States to construct, maintain, 

repair, and/or remove electric utility 

lines and/or road crossings, then NWP 

57 and/or NWP 14 shall be used if those 

activities meet the terms and conditions 

of NWPs 57 and 14, including any 

applicable regional conditions and any 

case-specific conditions imposed by the 

district engineer. 

Note 3: For any activity that involves 

the construction of a wind energy 

generating structure, solar tower, or 

overhead transmission line, a copy of 

the PCN and NWP verification will be 

provided by the Corps to the 

Department of Defense Siting 

Clearinghouse, which will evaluate 

potential effects on military activities. 

52. Water-Based Renewable Energy 

Generation Pilot Projects. Structures and 

work in navigable waters of the United 

States and discharges of dredged or fill 

material into waters of the United States 

for the construction, expansion, 

modification, or removal of water-based 

wind, water-based solar, wave energy, 

or hydrokinetic renewable energy 

generation pilot projects and their 

attendant features. Attendant features 

may include, but are not limited to, 

land-based collection and distribution 

facilities, control facilities, roads, 

parking lots, and stormwater 

management facilities. 

For the purposes of this NWP, the 

term ‘‘pilot project’’ means an 

experimental project where the waterbased renewable energy generation units 

will be monitored to collect information 

on their performance and environmental 

effects at the project site. 

The placement of a transmission line 

on the bed of a navigable water of the 

United States from the renewable energy 

generation unit(s) to a land-based 

collection and distribution facility is 

considered a structure under Section 10 

of the Rivers and Harbors Act of 1899 

(see 33 CFR 322.2(b)), and the 

placement of the transmission line on 

the bed of a navigable water of the 

United States is not a loss of waters of 

the United States for the purposes of 

applying the 1⁄2-acre limit. 

For each single and complete project, 

no more than 10 generation units (e.g., 

wind turbines, wave energy devices, or 

hydrokinetic devices) are authorized. 

For floating solar panels in navigable 

waters of the United States, each single 

and complete project cannot exceed 1⁄2- 

acre in water surface area covered by the 

floating solar panels. 

2864 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

This NWP does not authorize 

activities in coral reefs. Structures in an 

anchorage area established by the U.S. 

Coast Guard must comply with the 

requirements in 33 CFR 322.5(l)(2). 

Structures may not be placed in 

established danger zones or restricted 

areas designated in 33 CFR part 334, 

Federal navigation channels, shipping 

safety fairways or traffic separation 

schemes established by the U.S. Coast 

Guard (see 33 CFR 322.5(l)(1)), or EPA 

or Corps designated open water dredged 

material disposal areas. 

Upon completion of the pilot project, 

the generation units, transmission lines, 

and other structures or fills associated 

with the pilot project must be removed 

to the maximum extent practicable 

unless they are authorized by a separate 

Department of the Army authorization, 

such as another NWP, an individual 

permit, or a regional general permit. 

Completion of the pilot project will be 

identified as the date of expiration of 

the Federal Energy Regulatory 

Commission (FERC) license, or the 

expiration date of the NWP 

authorization if no FERC license is 

required. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity. (See general 

condition 32.) (Authorities: Sections 10 

and 404) 

Note 1: Electric utility lines 

constructed to transfer the energy from 

the land-based collection facility to a 

distribution system, regional grid, or 

other facility are generally considered to 

be linear projects and each separate and 

distant crossing of a waterbody is 

eligible for treatment as a separate single 

and complete linear project. Those 

electric utility lines may be authorized 

by NWP 57 or another Department of 

the Army authorization. 

Note 2: An activity that is located on 

an existing locally or federally 

maintained U.S. Army Corps of 

Engineers project requires separate 

review and/or approval from the Corps 

under 33 U.S.C. 408. 

Note 3: If the pilot project generation 

units, including any transmission lines, 

are placed in navigable waters of the 

United States (i.e., section 10 waters) 

within the coastal United States, the 

Great Lakes, and United States 

territories, copies of the NWP 

verification will be sent by the Corps to 

the National Oceanic and Atmospheric 

Administration, National Ocean Service, 

for charting the generation units and 

associated transmission line(s) to 

protect navigation. 

Note 4: Hydrokinetic renewable 

energy generation projects that require 

authorization by the Federal Energy 

Regulatory Commission under the 

Federal Power Act of 1920 do not 

require separate authorization from the 

Corps under section 10 of the Rivers and 

Harbors Act of 1899. 

Note 5: For any activity that involves 

the construction of a wind energy 

generating structure, solar tower, or 

overhead transmission line, a copy of 

the PCN and NWP verification will be 

provided by the Corps to the 

Department of Defense Siting 

Clearinghouse, which will evaluate 

potential effects on military activities. 

55. Seaweed Mariculture Activities. 

Structures in marine and estuarine 

waters, including structures anchored to 

the seabed in waters overlying the outer 

continental shelf, for seaweed 

mariculture activities. This NWP also 

authorizes structures for bivalve 

shellfish mariculture if shellfish 

production is a component of an 

integrated multi-trophic mariculture 

system (e.g., the production of seaweed 

and bivalve shellfish on the same 

structure or a nearby mariculture 

structure that is part of the single and 

complete project). 

This NWP authorizes the installation 

of buoys, long-lines, floats, anchors, 

rafts, racks, and other similar structures 

into navigable waters of the United 

States. Rafts, racks and other floating 

structures must be securely anchored 

and clearly marked. To the maximum 

extent practicable, the permittee must 

remove these structures from navigable 

waters of the United States if they will 

no longer be used for seaweed 

mariculture activities or multi-trophic 

mariculture activities. 

Structures in an anchorage area 

established by the U.S. Coast Guard 

must comply with the requirements in 

33 CFR 322.5(l)(2). Structures may not 

be placed in established danger zones or 

restricted areas designated in 33 CFR 

part 334, Federal navigation channels, 

shipping safety fairways or traffic 

separation schemes established by the 

U.S. Coast Guard (see 33 CFR 

322.5(l)(1)), or EPA or Corps designated 

open water dredged material disposal 

areas. 

This NWP does not authorize: 

(a) The cultivation of an aquatic 

nuisance species as defined in the 

Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990 or 

the cultivation of a nonindigenous 

species unless that species has been 

previously cultivated in the waterbody; 

or 

(b) Attendant features such as docks, 

piers, boat ramps, stockpiles, or staging 

areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer. (See general 

condition 32.) 

In addition to the information 

required by paragraph (b) of general 

condition 32, the preconstruction 

notification must also include the 

following information: (1) A map 

showing the locations and dimensions 

of the structure(s); (2) the name(s) of the 

species that will be cultivated during 

the period this NWP is in effect; and (3) 

general water depths in the project 

area(s) (a detailed survey is not 

required). No more than one preconstruction notification per structure 

or group of structures should be 

submitted for the seaweed mariculture 

operation during the effective period of 

this NWP. The pre-construction 

notification should describe all species 

and culture activities the operator 

expects to undertake during the 

effective period of this NWP. (Authority: 

Section 10) 

Note 1: The permittee should notify 

the applicable U.S. Coast Guard office 

regarding the project. 

Note 2: To prevent introduction of 

aquatic nuisance species, no material 

that has been taken from a different 

waterbody may be reused in the current 

project area, unless it has been treated 

in accordance with the applicable 

regional aquatic nuisance species 

management plan. 

Note 3: The Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 

1990 defines ‘‘aquatic nuisance species’’ 

as ‘‘a nonindigenous species that 

threatens the diversity or abundance of 

native species or the ecological stability 

of infested waters, or commercial, 

agricultural, aquacultural, or 

recreational activities dependent on 

such waters.’’ 

56. Finfish Mariculture Activities. 

Structures in marine and estuarine 

waters, including structures anchored to 

the seabed in waters overlying the outer 

continental shelf, for finfish mariculture 

activities. This NWP also authorizes 

structures for bivalve shellfish 

mariculture and/or seaweed mariculture 

if the structures for bivalve shellfish 

and/or seaweed production are a 

component of an integrated multitrophic mariculture structure (e.g., the 

production of bivalve shellfish or 

seaweed on the structure used for 

finfish mariculture, or a nearby 

mariculture structure that is part of the 

single and complete project). 

This NWP authorizes the installation 

of cages, net pens, anchors, floats, 

buoys, and other similar structures into 

navigable waters of the United States. 

Net pens, cages, and other floating 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2865 

structures must be securely anchored 

and clearly marked. To the maximum 

extent practicable, the permittee must 

remove these structures from navigable 

waters of the United States if they will 

no longer be used for finfish mariculture 

activities or multi-trophic mariculture 

activities. 

This NWP does not authorize the 

construction of land-based fish 

hatcheries or other attendant features. 

Structures in an anchorage area 

established by the U.S. Coast Guard 

must comply with the requirements in 

33 CFR 322.5(l)(2). Structures may not 

be placed in established danger zones or 

restricted areas designated in 33 CFR 

part 334, Federal navigation channels, 

shipping safety fairways or traffic 

separation schemes established by the 

U.S. Coast Guard (see 33 CFR 

322.5(l)(1)), or EPA or Corps designated 

open water dredged material disposal 

areas. 

This NWP does not authorize: 

(a) The cultivation of an aquatic 

nuisance species as defined in the 

Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990 or 

the cultivation of a nonindigenous 

species unless that species has been 

previously cultivated in the waterbody; 

or 

(b) Attendant features such as docks, 

piers, boat ramps, stockpiles, or staging 

areas. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer. (See general 

condition 32.) 

In addition to the information 

required by paragraph (b) of general 

condition 32, the pre-construction 

notification must also include the 

following information: (1) A map 

showing the locations and dimensions 

of the structure(s); (2) the name(s) of the 

species that will be cultivated during 

the period this NWP is in effect; and (3) 

general water depths in the project 

area(s) (a detailed survey is not 

required). No more than one preconstruction notification per structure 

or group of structures should be 

submitted for the finfish mariculture 

operation during the effective period of 

this NWP. The pre-construction 

notification should describe all species 

and culture activities the operator 

expects to undertake during the 

effective period of this NWP. (Authority: 

Section 10) 

Note 1: The permittee should notify 

the applicable U.S. Coast Guard office 

regarding the finfish mariculture 

activity. 

Note 2: To prevent introduction of 

aquatic nuisance species, no material 

that has been taken from a different 

waterbody may be reused in the current 

project area, unless it has been treated 

in accordance with the applicable 

regional aquatic nuisance species 

management plan. 

Note 3: The Nonindigenous Aquatic 

Nuisance Prevention and Control Act of 

1990 defines ‘‘aquatic nuisance species’’ 

as ‘‘a nonindigenous species that 

threatens the diversity or abundance of 

native species or the ecological stability 

of infested waters, or commercial, 

agricultural, aquacultural, or 

recreational activities dependent on 

such waters.’’ 

57. Electric Utility Line and 

Telecommunications Activities. 

Activities required for the construction, 

maintenance, repair, and removal of 

electric utility lines, telecommunication 

lines, and associated facilities in waters 

of the United States, provided the 

activity does not result in the loss of 

greater than 1⁄2-acre of waters of the 

United States for each single and 

complete project. 

Electric utility lines and 

telecommunication lines: This NWP 

authorizes discharges of dredged or fill 

material into waters of the United States 

and structures or work in navigable 

waters for crossings of those waters 

associated with the construction, 

maintenance, or repair of electric utility 

lines and telecommunication lines. 

There must be no change in preconstruction contours of waters of the 

United States. An ‘‘electric utility line 

and telecommunication line’’ is defined 

as any cable, line, fiber optic line, or 

wire for the transmission for any 

purpose of electrical energy, telephone, 

and telegraph messages, and internet, 

radio, and television communication. 

Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided the 

material is not placed in such a manner 

that it is dispersed by currents or other 

forces. The district engineer may extend 

the period of temporary side casting for 

no more than a total of 180 days, where 

appropriate. In wetlands, the top 6 to 12 

inches of the trench should normally be 

backfilled with topsoil from the trench. 

The trench cannot be constructed or 

backfilled in such a manner as to drain 

waters of the United States (e.g., 

backfilling with extensive gravel layers, 

creating a french drain effect). Any 

exposed slopes and stream banks must 

be stabilized immediately upon 

completion of the electric utility line or 

telecommunication line crossing of each 

waterbody. 

Electric utility line and 

telecommunications substations: This 

NWP authorizes the construction, 

maintenance, or expansion of substation 

facilities associated with an electric 

utility line or telecommunication line in 

non-tidal waters of the United States, 

provided the activity, in combination 

with all other activities included in one 

single and complete project, does not 

result in the loss of greater than 1⁄2-acre 

of waters of the United States. This 

NWP does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct, maintain, or 

expand substation facilities. 

Foundations for overhead electric 

utility line or telecommunication line 

towers, poles, and anchors: This NWP 

authorizes the construction or 

maintenance of foundations for 

overhead electric utility line or 

telecommunication line towers, poles, 

and anchors in all waters of the United 

States, provided the foundations are the 

minimum size necessary and separate 

footings for each tower leg (rather than 

a larger single pad) are used where 

feasible. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of 

electric utility lines or 

telecommunication lines, including 

overhead lines and substations, in nontidal waters of the United States, 

provided the activity, in combination 

with all other activities included in one 

single and complete project, does not 

cause the loss of greater than 1⁄2-acre of 

non-tidal waters of the United States. 

This NWP does not authorize discharges 

of dredged or fill material into non-tidal 

wetlands adjacent to tidal waters for 

access roads. Access roads must be the 

minimum width necessary (see Note 2, 

below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize electric 

utility lines or telecommunication lines 

in or affecting navigable waters of the 

United States even if there is no 

associated discharge of dredged or fill 

material (see 33 CFR part 322). Electric 

utility lines or telecommunication lines 

constructed over section 10 waters and 

electric utility lines or 

telecommunication lines that are routed 

in or under section 10 waters without a 

discharge of dredged or fill material 

require a section 10 permit. 

2866 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

This NWP authorizes, to the extent 

that Department of the Army 

authorization is required, temporary 

structures, fills, and work necessary for 

the remediation of inadvertent returns 

of drilling fluids to waters of the United 

States through sub-soil fissures or 

fractures that might occur during 

horizontal directional drilling activities 

conducted for the purpose of installing 

or replacing electric utility lines or 

telecommunication lines. These 

remediation activities must be done as 

soon as practicable, to restore the 

affected waterbody. District engineers 

may add special conditions to this NWP 

to require a remediation plan for 

addressing inadvertent returns of 

drilling fluids to waters of the United 

States during horizontal directional 

drilling activities conducted for the 

purpose of installing or replacing 

electric utility lines or 

telecommunication lines. 

This NWP also authorizes temporary 

structures, fills, and work, including the 

use of temporary mats, necessary to 

conduct the electric utility line activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges of 

dredged or fill material, including 

cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. After construction, temporary 

fills must be removed in their entirety 

and the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) A section 

10 permit is required; or (2) the 

discharge will result in the loss of 

greater than 1⁄10-acre of waters of the 

United States. (See general condition 

32.) (Authorities: Sections 10 and 404) 

Note 1: Where the electric utility line 

is constructed, installed, or maintained 

in navigable waters of the United States 

(i.e., section 10 waters) within the 

coastal United States, the Great Lakes, 

and United States territories, a copy of 

the NWP verification will be sent by the 

Corps to the National Oceanic and 

Atmospheric Administration (NOAA), 

National Ocean Service (NOS), for 

charting the electric utility line to 

protect navigation. 

Note 2: For electric utility line or 

telecommunications activities crossing a 

single waterbody more than one time at 

separate and distant locations, or 

multiple waterbodies at separate and 

distant locations, each crossing is 

considered a single and complete 

project for purposes of NWP 

authorization. Electric utility line and 

telecommunications activities must 

comply with 33 CFR 330.6(d). 

Note 3: Electric utility lines or 

telecommunication lines consisting of 

aerial electric power transmission lines 

crossing navigable waters of the United 

States (which are defined at 33 CFR part 

329) must comply with the applicable 

minimum clearances specified in 33 

CFR 322.5(i). 

Note 4: Access roads used for both 

construction and maintenance may be 

authorized, provided they meet the 

terms and conditions of this NWP. 

Access roads used solely for 

construction of the electric utility line 

or telecommunication line must be 

removed upon completion of the work, 

in accordance with the requirements for 

temporary fills. 

Note 5: This NWP authorizes electric 

utility line and telecommunication line 

maintenance and repair activities that 

do not qualify for the Clean Water Act 

section 404(f) exemption for 

maintenance of currently serviceable 

fills or fill structures. 

Note 6: For overhead electric utility 

lines and telecommunication lines 

authorized by this NWP, a copy of the 

PCN and NWP verification will be 

provided by the Corps to the 

Department of Defense Siting 

Clearinghouse, which will evaluate 

potential effects on military activities. 

Note 7: For activities that require preconstruction notification, the PCN must 

include any other NWP(s), regional 

general permit(s), or individual 

permit(s) used or intended to be used to 

authorize any part of the proposed 

project or any related activity, including 

other separate and distant crossings that 

require Department of the Army 

authorization but do not require preconstruction notification (see paragraph 

(b)(4) of general condition 32). The 

district engineer will evaluate the PCN 

in accordance with Section D, ‘‘District 

Engineer’s Decision.’’ The district 

engineer may require mitigation to 

ensure that the authorized activity 

results in no more than minimal 

individual and cumulative adverse 

environmental effects (see general 

condition 23). 

58. Utility Line Activities for Water 

and Other Substances. Activities 

required for the construction, 

maintenance, repair, and removal of 

utility lines for water and other 

substances, excluding oil, natural gas, 

products derived from oil or natural gas, 

and electricity. Oil or natural gas 

pipeline activities or electric utility line 

and telecommunications activities may 

be authorized by NWPs 12 or 57, 

respectively. This NWP also authorizes 

associated utility line facilities in waters 

of the United States, provided the 

activity does not result in the loss of 

greater than 1⁄2-acre of waters of the 

United States for each single and 

complete project. 

Utility lines: This NWP authorizes 

discharges of dredged or fill material 

into waters of the United States and 

structures or work in navigable waters 

for crossings of those waters associated 

with the construction, maintenance, or 

repair of utility lines for water and other 

substances, including outfall and intake 

structures. There must be no change in 

pre-construction contours of waters of 

the United States. A ‘‘utility line’’ is 

defined as any pipe or pipeline for the 

transportation of any gaseous, liquid, 

liquescent, or slurry substance, for any 

purpose that is not oil, natural gas, or 

petrochemicals. Examples of activities 

authorized by this NWP include utility 

lines that convey water, sewage, 

stormwater, wastewater, brine, irrigation 

water, and industrial products that are 

not petrochemicals. The term ‘‘utility 

line’’ does not include activities that 

drain a water of the United States, such 

as drainage tile or french drains, but it 

does apply to pipes conveying drainage 

from another area. 

Material resulting from trench 

excavation may be temporarily sidecast 

into waters of the United States for no 

more than three months, provided the 

material is not placed in such a manner 

that it is dispersed by currents or other 

forces. The district engineer may extend 

the period of temporary side casting for 

no more than a total of 180 days, where 

appropriate. In wetlands, the top 6 to 12 

inches of the trench should normally be 

backfilled with topsoil from the trench. 

The trench cannot be constructed or 

backfilled in such a manner as to drain 

waters of the United States (e.g., 

backfilling with extensive gravel layers, 

creating a french drain effect). Any 

exposed slopes and stream banks must 

be stabilized immediately upon 

completion of the utility line crossing of 

each waterbody. 

Utility line substations: This NWP 

authorizes the construction, 

maintenance, or expansion of substation 

facilities associated with a utility line in 

non-tidal waters of the United States, 

provided the activity, in combination 

with all other activities included in one 

single and complete project, does not 

result in the loss of greater than 1⁄2-acre 

of waters of the United States. This 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2867 

NWP does not authorize discharges of 

dredged or fill material into non-tidal 

wetlands adjacent to tidal waters of the 

United States to construct, maintain, or 

expand substation facilities. 

Foundations for above-ground utility 

lines: This NWP authorizes the 

construction or maintenance of 

foundations for above-ground utility 

lines in all waters of the United States, 

provided the foundations are the 

minimum size necessary. 

Access roads: This NWP authorizes 

the construction of access roads for the 

construction and maintenance of utility 

lines, including utility line substations, 

in non-tidal waters of the United States, 

provided the activity, in combination 

with all other activities included in one 

single and complete project, does not 

cause the loss of greater than 1⁄2-acre of 

non-tidal waters of the United States. 

This NWP does not authorize discharges 

of dredged or fill material into non-tidal 

wetlands adjacent to tidal waters for 

access roads. Access roads must be the 

minimum width necessary (see Note 2, 

below). Access roads must be 

constructed so that the length of the 

road minimizes any adverse effects on 

waters of the United States and must be 

as near as possible to pre-construction 

contours and elevations (e.g., at grade 

corduroy roads or geotextile/gravel 

roads). Access roads constructed above 

pre-construction contours and 

elevations in waters of the United States 

must be properly bridged or culverted to 

maintain surface flows. 

This NWP may authorize utility lines 

in or affecting navigable waters of the 

United States even if there is no 

associated discharge of dredged or fill 

material (see 33 CFR part 322). 

Overhead utility lines constructed over 

section 10 waters and utility lines that 

are routed in or under section 10 waters 

without a discharge of dredged or fill 

material require a section 10 permit. 

This NWP authorizes, to the extent 

that Department of the Army 

authorization is required, temporary 

structures, fills, and work necessary for 

the remediation of inadvertent returns 

of drilling fluids to waters of the United 

States through sub-soil fissures or 

fractures that might occur during 

horizontal directional drilling activities 

conducted for the purpose of installing 

or replacing utility lines. These 

remediation activities must be done as 

soon as practicable, to restore the 

affected waterbody. District engineers 

may add special conditions to this NWP 

to require a remediation plan for 

addressing inadvertent returns of 

drilling fluids to waters of the United 

States during horizontal directional 

drilling activities conducted for the 

purpose of installing or replacing utility 

lines. 

This NWP also authorizes temporary 

structures, fills, and work, including the 

use of temporary mats, necessary to 

conduct the utility line activity. 

Appropriate measures must be taken to 

maintain normal downstream flows and 

minimize flooding to the maximum 

extent practicable, when temporary 

structures, work, and discharges of 

dredged or fill material, including 

cofferdams, are necessary for 

construction activities, access fills, or 

dewatering of construction sites. 

Temporary fills must consist of 

materials, and be placed in a manner, 

that will not be eroded by expected high 

flows. After construction, temporary 

fills must be removed in their entirety 

and the affected areas returned to preconstruction elevations. The areas 

affected by temporary fills must be 

revegetated, as appropriate. 

Notification: The permittee must 

submit a pre-construction notification to 

the district engineer prior to 

commencing the activity if: (1) A section 

10 permit is required; or (2) the 

discharge will result in the loss of 

greater than 1⁄10-acre of waters of the 

United States. (See general condition 

32.) (Authorities: Sections 10 and 404) 

Note 1: Where the utility line is 

constructed, installed, or maintained in 

navigable waters of the United States 

(i.e., section 10 waters) within the 

coastal United States, the Great Lakes, 

and United States territories, a copy of 

the NWP verification will be sent by the 

Corps to the National Oceanic and 

Atmospheric Administration (NOAA), 

National Ocean Service (NOS), for 

charting the utility line to protect 

navigation. 

Note 2: For utility line activities 

crossing a single waterbody more than 

one time at separate and distant 

locations, or multiple waterbodies at 

separate and distant locations, each 

crossing is considered a single and 

complete project for purposes of NWP 

authorization. Utility line activities 

must comply with 33 CFR 330.6(d). 

Note 3: Access roads used for both 

construction and maintenance may be 

authorized, provided they meet the 

terms and conditions of this NWP. 

Access roads used solely for 

construction of the utility line must be 

removed upon completion of the work, 

in accordance with the requirements for 

temporary fills. 

Note 4: Pipes or pipelines used to 

transport gaseous, liquid, liquescent, or 

slurry substances over navigable waters 

of the United States are considered to be 

bridges, not utility lines, and may 

require a permit from the U.S. Coast 

Guard pursuant to the General Bridge 

Act of 1946. However, any discharges of 

dredged or fill material into waters of 

the United States associated with such 

pipelines will require a section 404 

permit (see NWP 15). 

Note 5: This NWP authorizes utility 

line maintenance and repair activities 

that do not qualify for the Clean Water 

Act section 404(f) exemption for 

maintenance of currently serviceable 

fills or fill structures. 

Note 6: For activities that require preconstruction notification, the PCN must 

include any other NWP(s), regional 

general permit(s), or individual 

permit(s) used or intended to be used to 

authorize any part of the proposed 

project or any related activity, including 

other separate and distant crossings that 

require Department of the Army 

authorization but do not require preconstruction notification (see paragraph 

(b)(4) of general condition 32). The 

district engineer will evaluate the PCN 

in accordance with Section D, ‘‘District 

Engineer’s Decision.’’ The district 

engineer may require mitigation to 

ensure that the authorized activity 

results in no more than minimal 

individual and cumulative adverse 

environmental effects (see general 

condition 23). 

C. Nationwide Permit General 

Conditions 

Note: To qualify for NWP 

authorization, the prospective permittee 

must comply with the following general 

conditions, as applicable, in addition to 

any regional or case-specific conditions 

imposed by the division engineer or 

district engineer. Prospective permittees 

should contact the appropriate Corps 

district office to determine if regional 

conditions have been imposed on an 

NWP. Prospective permittees should 

also contact the appropriate Corps 

district office to determine the status of 

Clean Water Act Section 401 water 

quality certification and/or Coastal Zone 

Management Act consistency for an 

NWP. Every person who may wish to 

obtain permit authorization under one 

or more NWPs, or who is currently 

relying on an existing or prior permit 

authorization under one or more NWPs, 

has been and is on notice that all of the 

provisions of 33 CFR 330.1 through 

330.6 apply to every NWP 

authorization. Note especially 33 CFR 

330.5 relating to the modification, 

suspension, or revocation of any NWP 

authorization. 

1. Navigation. (a) No activity may 

cause more than a minimal adverse 

effect on navigation. 

(b) Any safety lights and signals 

prescribed by the U.S. Coast Guard, 

2868 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

through regulations or otherwise, must 

be installed and maintained at the 

permittee’s expense on authorized 

facilities in navigable waters of the 

United States. 

(c) The permittee understands and 

agrees that, if future operations by the 

United States require the removal, 

relocation, or other alteration, of the 

structure or work herein authorized, or 

if, in the opinion of the Secretary of the 

Army or his or her authorized 

representative, said structure or work 

shall cause unreasonable obstruction to 

the free navigation of the navigable 

waters, the permittee will be required, 

upon due notice from the Corps of 

Engineers, to remove, relocate, or alter 

the structural work or obstructions 

caused thereby, without expense to the 

United States. No claim shall be made 

against the United States on account of 

any such removal or alteration. 

2. Aquatic Life Movements. No 

activity may substantially disrupt the 

necessary life cycle movements of those 

species of aquatic life indigenous to the 

waterbody, including those species that 

normally migrate through the area, 

unless the activity’s primary purpose is 

to impound water. All permanent and 

temporary crossings of waterbodies 

shall be suitably culverted, bridged, or 

otherwise designed and constructed to 

maintain low flows to sustain the 

movement of those aquatic species. If a 

bottomless culvert cannot be used, then 

the crossing should be designed and 

constructed to minimize adverse effects 

to aquatic life movements. 

3. Spawning Areas. Activities in 

spawning areas during spawning 

seasons must be avoided to the 

maximum extent practicable. Activities 

that result in the physical destruction 

(e.g., through excavation, fill, or 

downstream smothering by substantial 

turbidity) of an important spawning area 

are not authorized. 

4. Migratory Bird Breeding Areas. 

Activities in waters of the United States 

that serve as breeding areas for 

migratory birds must be avoided to the 

maximum extent practicable. 

5. Shellfish Beds. No activity may 

occur in areas of concentrated shellfish 

populations, unless the activity is 

directly related to a shellfish harvesting 

activity authorized by NWPs 4 and 48, 

or is a shellfish seeding or habitat 

restoration activity authorized by NWP 

27. 

6. Suitable Material. No activity may 

use unsuitable material (e.g., trash, 

debris, car bodies, asphalt, etc.). 

Material used for construction or 

discharged must be free from toxic 

pollutants in toxic amounts (see section 

307 of the Clean Water Act). 

7. Water Supply Intakes. No activity 

may occur in the proximity of a public 

water supply intake, except where the 

activity is for the repair or improvement 

of public water supply intake structures 

or adjacent bank stabilization. 

8. Adverse Effects From 

Impoundments. If the activity creates an 

impoundment of water, adverse effects 

to the aquatic system due to accelerating 

the passage of water, and/or restricting 

its flow must be minimized to the 

maximum extent practicable. 

9. Management of Water Flows. To the 

maximum extent practicable, the preconstruction course, condition, 

capacity, and location of open waters 

must be maintained for each activity, 

including stream channelization, storm 

water management activities, and 

temporary and permanent road 

crossings, except as provided below. 

The activity must be constructed to 

withstand expected high flows. The 

activity must not restrict or impede the 

passage of normal or high flows, unless 

the primary purpose of the activity is to 

impound water or manage high flows. 

The activity may alter the preconstruction course, condition, 

capacity, and location of open waters if 

it benefits the aquatic environment (e.g., 

stream restoration or relocation 

activities). 

10. Fills Within 100-Year Floodplains. 

The activity must comply with 

applicable FEMA-approved state or 

local floodplain management 

requirements. 

11. Equipment. Heavy equipment 

working in wetlands or mudflats must 

be placed on mats, or other measures 

must be taken to minimize soil 

disturbance. 

12. Soil Erosion and Sediment 

Controls. Appropriate soil erosion and 

sediment controls must be used and 

maintained in effective operating 

condition during construction, and all 

exposed soil and other fills, as well as 

any work below the ordinary high water 

mark or high tide line, must be 

permanently stabilized at the earliest 

practicable date. Permittees are 

encouraged to perform work within 

waters of the United States during 

periods of low-flow or no-flow, or 

during low tides. 

13. Removal of Temporary Structures 

and Fills. Temporary structures must be 

removed, to the maximum extent 

practicable, after their use has been 

discontinued. Temporary fills must be 

removed in their entirety and the 

affected areas returned to preconstruction elevations. The affected 

areas must be revegetated, as 

appropriate. 

14. Proper Maintenance. Any 

authorized structure or fill shall be 

properly maintained, including 

maintenance to ensure public safety and 

compliance with applicable NWP 

general conditions, as well as any 

activity-specific conditions added by 

the district engineer to an NWP 

authorization. 

15. Single and Complete Project. The 

activity must be a single and complete 

project. The same NWP cannot be used 

more than once for the same single and 

complete project. 

16. Wild and Scenic Rivers. (a) No 

NWP activity may occur in a component 

of the National Wild and Scenic River 

System, or in a river officially 

designated by Congress as a ‘‘study 

river’’ for possible inclusion in the 

system while the river is in an official 

study status, unless the appropriate 

Federal agency with direct management 

responsibility for such river, has 

determined in writing that the proposed 

activity will not adversely affect the 

Wild and Scenic River designation or 

study status. 

(b) If a proposed NWP activity will 

occur in a component of the National 

Wild and Scenic River System, or in a 

river officially designated by Congress 

as a ‘‘study river’’ for possible inclusion 

in the system while the river is in an 

official study status, the permittee must 

submit a pre-construction notification 

(see general condition 32). The district 

engineer will coordinate the PCN with 

the Federal agency with direct 

management responsibility for that 

river. Permittees shall not begin the 

NWP activity until notified by the 

district engineer that the Federal agency 

with direct management responsibility 

for that river has determined in writing 

that the proposed NWP activity will not 

adversely affect the Wild and Scenic 

River designation or study status. 

(c) Information on Wild and Scenic 

Rivers may be obtained from the 

appropriate Federal land management 

agency responsible for the designated 

Wild and Scenic River or study river 

(e.g., National Park Service, U.S. Forest 

Service, Bureau of Land Management, 

U.S. Fish and Wildlife Service). 

Information on these rivers is also 

available at: http://www.rivers.gov/. 

17. Tribal Rights. No activity or its 

operation may impair reserved tribal 

rights, including, but not limited to, 

reserved water rights and treaty fishing 

and hunting rights. 

18. Endangered Species. (a) No 

activity is authorized under any NWP 

which is likely to directly or indirectly 

jeopardize the continued existence of a 

threatened or endangered species or a 

species proposed for such designation, 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2869 

as identified under the Federal 

Endangered Species Act (ESA), or 

which will directly or indirectly destroy 

or adversely modify designated critical 

habitat or critical habitat proposed for 

such designation. No activity is 

authorized under any NWP which ‘‘may 

affect’’ a listed species or critical 

habitat, unless ESA section 7 

consultation addressing the 

consequences of the proposed activity 

on listed species or critical habitat has 

been completed. See 50 CFR 402.02 for 

the definition of ‘‘effects of the action’’ 

for the purposes of ESA section 7 

consultation, as well as 50 CFR 402.17, 

which provides further explanation 

under ESA section 7 regarding 

‘‘activities that are reasonably certain to 

occur’’ and ‘‘consequences caused by 

the proposed action.’’ 

(b) Federal agencies should follow 

their own procedures for complying 

with the requirements of the ESA (see 

33 CFR 330.4(f)(1)). If pre-construction 

notification is required for the proposed 

activity, the Federal permittee must 

provide the district engineer with the 

appropriate documentation to 

demonstrate compliance with those 

requirements. The district engineer will 

verify that the appropriate 

documentation has been submitted. If 

the appropriate documentation has not 

been submitted, additional ESA section 

7 consultation may be necessary for the 

activity and the respective federal 

agency would be responsible for 

fulfilling its obligation under section 7 

of the ESA. 

(c) Non-federal permittees must 

submit a pre-construction notification to 

the district engineer if any listed species 

(or species proposed for listing) or 

designated critical habitat (or critical 

habitat proposed such designation) 

might be affected or is in the vicinity of 

the activity, or if the activity is located 

in designated critical habitat or critical 

habitat proposed for such designation, 

and shall not begin work on the activity 

until notified by the district engineer 

that the requirements of the ESA have 

been satisfied and that the activity is 

authorized. For activities that might 

affect Federally-listed endangered or 

threatened species (or species proposed 

for listing) or designated critical habitat 

(or critical habitat proposed for such 

designation), the pre-construction 

notification must include the name(s) of 

the endangered or threatened species (or 

species proposed for listing) that might 

be affected by the proposed activity or 

that utilize the designated critical 

habitat (or critical habitat proposed for 

such designation) that might be affected 

by the proposed activity. The district 

engineer will determine whether the 

proposed activity ‘‘may affect’’ or will 

have ‘‘no effect’’ to listed species and 

designated critical habitat and will 

notify the non-Federal applicant of the 

Corps’ determination within 45 days of 

receipt of a complete pre-construction 

notification. For activities where the 

non-Federal applicant has identified 

listed species (or species proposed for 

listing) or designated critical habitat (or 

critical habitat proposed for such 

designation) that might be affected or is 

in the vicinity of the activity, and has 

so notified the Corps, the applicant shall 

not begin work until the Corps has 

provided notification that the proposed 

activity will have ‘‘no effect’’ on listed 

species (or species proposed for listing 

or designated critical habitat (or critical 

habitat proposed for such designation), 

or until ESA section 7 consultation or 

conference has been completed. If the 

non-Federal applicant has not heard 

back from the Corps within 45 days, the 

applicant must still wait for notification 

from the Corps. 

(d) As a result of formal or informal 

consultation or conference with the 

FWS or NMFS the district engineer may 

add species-specific permit conditions 

to the NWPs. 

(e) Authorization of an activity by an 

NWP does not authorize the ‘‘take’’ of a 

threatened or endangered species as 

defined under the ESA. In the absence 

of separate authorization (e.g., an ESA 

Section 10 Permit, a Biological Opinion 

with ‘‘incidental take’’ provisions, etc.) 

from the FWS or the NMFS, the 

Endangered Species Act prohibits any 

person subject to the jurisdiction of the 

United States to take a listed species, 

where ‘‘take’’ means to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt to 

engage in any such conduct. The word 

‘‘harm’’ in the definition of ‘‘take’’ 

means an act which actually kills or 

injures wildlife. Such an act may 

include significant habitat modification 

or degradation where it actually kills or 

injures wildlife by significantly 

impairing essential behavioral patterns, 

including breeding, feeding or 

sheltering. 

(f) If the non-federal permittee has a 

valid ESA section 10(a)(1)(B) incidental 

take permit with an approved Habitat 

Conservation Plan for a project or a 

group of projects that includes the 

proposed NWP activity, the non-federal 

applicant should provide a copy of that 

ESA section 10(a)(1)(B) permit with the 

PCN required by paragraph (c) of this 

general condition. The district engineer 

will coordinate with the agency that 

issued the ESA section 10(a)(1)(B) 

permit to determine whether the 

proposed NWP activity and the 

associated incidental take were 

considered in the internal ESA section 

7 consultation conducted for the ESA 

section 10(a)(1)(B) permit. If that 

coordination results in concurrence 

from the agency that the proposed NWP 

activity and the associated incidental 

take were considered in the internal 

ESA section 7 consultation for the ESA 

section 10(a)(1)(B) permit, the district 

engineer does not need to conduct a 

separate ESA section 7 consultation for 

the proposed NWP activity. The district 

engineer will notify the non-federal 

applicant within 45 days of receipt of a 

complete pre-construction notification 

whether the ESA section 10(a)(1)(B) 

permit covers the proposed NWP 

activity or whether additional ESA 

section 7 consultation is required. 

(g) Information on the location of 

threatened and endangered species and 

their critical habitat can be obtained 

directly from the offices of the FWS and 

NMFS or their world wide web pages at 

http://www.fws.gov/ or http://

www.fws.gov/ipac and http://

www.nmfs.noaa.gov/pr/species/esa/ 

respectively. 

19. Migratory Birds and Bald and 

Golden Eagles. The permittee is 

responsible for ensuring that an action 

authorized by an NWP complies with 

the Migratory Bird Treaty Act and the 

Bald and Golden Eagle Protection Act. 

The permittee is responsible for 

contacting the appropriate local office of 

the U.S. Fish and Wildlife Service to 

determine what measures, if any, are 

necessary or appropriate to reduce 

adverse effects to migratory birds or 

eagles, including whether ‘‘incidental 

take’’ permits are necessary and 

available under the Migratory Bird 

Treaty Act or Bald and Golden Eagle 

Protection Act for a particular activity. 

20. Historic Properties. (a) No activity 

is authorized under any NWP which 

may have the potential to cause effects 

to properties listed, or eligible for 

listing, in the National Register of 

Historic Places until the requirements of 

Section 106 of the National Historic 

Preservation Act (NHPA) have been 

satisfied. 

(b) Federal permittees should follow 

their own procedures for complying 

with the requirements of section 106 of 

the National Historic Preservation Act 

(see 33 CFR 330.4(g)(1)). If preconstruction notification is required for 

the proposed NWP activity, the Federal 

permittee must provide the district 

engineer with the appropriate 

documentation to demonstrate 

compliance with those requirements. 

The district engineer will verify that the 

appropriate documentation has been 

submitted. If the appropriate 

2870 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

documentation is not submitted, then 

additional consultation under section 

106 may be necessary. The respective 

federal agency is responsible for 

fulfilling its obligation to comply with 

section 106. 

(c) Non-federal permittees must 

submit a pre-construction notification to 

the district engineer if the NWP activity 

might have the potential to cause effects 

to any historic properties listed on, 

determined to be eligible for listing on, 

or potentially eligible for listing on the 

National Register of Historic Places, 

including previously unidentified 

properties. For such activities, the preconstruction notification must state 

which historic properties might have 

the potential to be affected by the 

proposed NWP activity or include a 

vicinity map indicating the location of 

the historic properties or the potential 

for the presence of historic properties. 

Assistance regarding information on the 

location of, or potential for, the presence 

of historic properties can be sought from 

the State Historic Preservation Officer, 

Tribal Historic Preservation Officer, or 

designated tribal representative, as 

appropriate, and the National Register of 

Historic Places (see 33 CFR 330.4(g)). 

When reviewing pre-construction 

notifications, district engineers will 

comply with the current procedures for 

addressing the requirements of section 

106 of the National Historic 

Preservation Act. The district engineer 

shall make a reasonable and good faith 

effort to carry out appropriate 

identification efforts commensurate 

with potential impacts, which may 

include background research, 

consultation, oral history interviews, 

sample field investigation, and/or field 

survey. Based on the information 

submitted in the PCN and these 

identification efforts, the district 

engineer shall determine whether the 

proposed NWP activity has the potential 

to cause effects on the historic 

properties. Section 106 consultation is 

not required when the district engineer 

determines that the activity does not 

have the potential to cause effects on 

historic properties (see 36 CFR 800.3(a)). 

Section 106 consultation is required 

when the district engineer determines 

that the activity has the potential to 

cause effects on historic properties. The 

district engineer will conduct 

consultation with consulting parties 

identified under 36 CFR 800.2(c) when 

he or she makes any of the following 

effect determinations for the purposes of 

section 106 of the NHPA: No historic 

properties affected, no adverse effect, or 

adverse effect. 

(d) Where the non-Federal applicant 

has identified historic properties on 

which the proposed NWP activity might 

have the potential to cause effects and 

has so notified the Corps, the nonFederal applicant shall not begin the 

activity until notified by the district 

engineer either that the activity has no 

potential to cause effects to historic 

properties or that NHPA section 106 

consultation has been completed. For 

non-federal permittees, the district 

engineer will notify the prospective 

permittee within 45 days of receipt of a 

complete pre-construction notification 

whether NHPA section 106 consultation 

is required. If NHPA section 106 

consultation is required, the district 

engineer will notify the non-Federal 

applicant that he or she cannot begin 

the activity until section 106 

consultation is completed. If the nonFederal applicant has not heard back 

from the Corps within 45 days, the 

applicant must still wait for notification 

from the Corps. 

(e) Prospective permittees should be 

aware that section 110k of the NHPA (54 

U.S.C. 306113) prevents the Corps from 

granting a permit or other assistance to 

an applicant who, with intent to avoid 

the requirements of section 106 of the 

NHPA, has intentionally significantly 

adversely affected a historic property to 

which the permit would relate, or 

having legal power to prevent it, 

allowed such significant adverse effect 

to occur, unless the Corps, after 

consultation with the Advisory Council 

on Historic Preservation (ACHP), 

determines that circumstances justify 

granting such assistance despite the 

adverse effect created or permitted by 

the applicant. If circumstances justify 

granting the assistance, the Corps is 

required to notify the ACHP and 

provide documentation specifying the 

circumstances, the degree of damage to 

the integrity of any historic properties 

affected, and proposed mitigation. This 

documentation must include any views 

obtained from the applicant, SHPO/ 

THPO, appropriate Indian tribes if the 

undertaking occurs on or affects historic 

properties on tribal lands or affects 

properties of interest to those tribes, and 

other parties known to have a legitimate 

interest in the impacts to the permitted 

activity on historic properties. 

21. Discovery of Previously Unknown 

Remains and Artifacts. Permittees that 

discover any previously unknown 

historic, cultural or archeological 

remains and artifacts while 

accomplishing the activity authorized 

by an NWP, they must immediately 

notify the district engineer of what they 

have found, and to the maximum extent 

practicable, avoid construction activities 

that may affect the remains and artifacts 

until the required coordination has been 

completed. The district engineer will 

initiate the Federal, Tribal, and state 

coordination required to determine if 

the items or remains warrant a recovery 

effort or if the site is eligible for listing 

in the National Register of Historic 

Places. 

22. Designated Critical Resource 

Waters. Critical resource waters include, 

NOAA-managed marine sanctuaries and 

marine monuments, and National 

Estuarine Research Reserves. The 

district engineer may designate, after 

notice and opportunity for public 

comment, additional waters officially 

designated by a state as having 

particular environmental or ecological 

significance, such as outstanding 

national resource waters or state natural 

heritage sites. The district engineer may 

also designate additional critical 

resource waters after notice and 

opportunity for public comment. 

(a) Discharges of dredged or fill 

material into waters of the United States 

are not authorized by NWPs 7, 12, 14, 

16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 

49, 50, 51, 52, 57 and 58 for any activity 

within, or directly affecting, critical 

resource waters, including wetlands 

adjacent to such waters. 

(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 

22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, 

and 54, notification is required in 

accordance with general condition 32, 

for any activity proposed by permittees 

in the designated critical resource 

waters including wetlands adjacent to 

those waters. The district engineer may 

authorize activities under these NWPs 

only after she or he determines that the 

impacts to the critical resource waters 

will be no more than minimal. 

23. Mitigation. The district engineer 

will consider the following factors when 

determining appropriate and practicable 

mitigation necessary to ensure that the 

individual and cumulative adverse 

environmental effects are no more than 

minimal: 

(a) The activity must 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). 

(b) Mitigation in all its forms 

(avoiding, minimizing, rectifying, 

reducing, or compensating for resource 

losses) will be required to the extent 

necessary to ensure that the individual 

and cumulative adverse environmental 

effects are no more than minimal. 

(c) Compensatory mitigation at a 

minimum one-for-one ratio will be 

required for all wetland losses that 

exceed 1⁄10-acre and require preconstruction notification, unless the 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2871 

district engineer determines in writing 

that either some other form of mitigation 

would be more environmentally 

appropriate or the adverse 

environmental effects of the proposed 

activity are no more than minimal, and 

provides an activity-specific waiver of 

this requirement. For wetland losses of 

1⁄10-acre or less that require preconstruction notification, the district 

engineer may determine on a case-bycase basis that compensatory mitigation 

is required to ensure that the activity 

results in only minimal adverse 

environmental effects. 

(d) Compensatory mitigation at a 

minimum one-for-one ratio will be 

required for all losses of stream bed that 

exceed 3⁄100-acre and require preconstruction notification, unless the 

district engineer determines in writing 

that either some other form of mitigation 

would be more environmentally 

appropriate or the adverse 

environmental effects of the proposed 

activity are no more than minimal, and 

provides an activity-specific waiver of 

this requirement. This compensatory 

mitigation requirement may be satisfied 

through the restoration or enhancement 

of riparian areas next to streams in 

accordance with paragraph (e) of this 

general condition. For losses of stream 

bed of 3⁄100-acre or less that require preconstruction notification, the district 

engineer may determine on a case-bycase basis that compensatory mitigation 

is required to ensure that the activity 

results in only minimal adverse 

environmental effects. Compensatory 

mitigation for losses of streams should 

be provided, if practicable, through 

stream rehabilitation, enhancement, or 

preservation, since streams are difficultto-replace resources (see 33 CFR 

332.3(e)(3)). 

(e) Compensatory mitigation plans for 

NWP activities in or near streams or 

other open waters will normally include 

a requirement for the restoration or 

enhancement, maintenance, and legal 

protection (e.g., conservation easements) 

of riparian areas next to open waters. In 

some cases, the restoration or 

maintenance/protection of riparian 

areas may be the only compensatory 

mitigation required. If restoring riparian 

areas involves planting vegetation, only 

native species should be planted. The 

width of the required riparian area will 

address documented water quality or 

aquatic habitat loss concerns. Normally, 

the riparian area will be 25 to 50 feet 

wide on each side of the stream, but the 

district engineer may require slightly 

wider riparian areas to address 

documented water quality or habitat 

loss concerns. If it is not possible to 

restore or maintain/protect a riparian 

area on both sides of a stream, or if the 

waterbody is a lake or coastal waters, 

then restoring or maintaining/protecting 

a riparian area along a single bank or 

shoreline may be sufficient. Where both 

wetlands and open waters exist on the 

project site, the district engineer will 

determine the appropriate 

compensatory mitigation (e.g., riparian 

areas and/or wetlands compensation) 

based on what is best for the aquatic 

environment on a watershed basis. In 

cases where riparian areas are 

determined to be the most appropriate 

form of minimization or compensatory 

mitigation, the district engineer may 

waive or reduce the requirement to 

provide wetland compensatory 

mitigation for wetland losses. 

(f) Compensatory mitigation projects 

provided to offset losses of aquatic 

resources must comply with the 

applicable provisions of 33 CFR part 

332. 

(1) The prospective permittee is 

responsible for proposing an 

appropriate compensatory mitigation 

option if compensatory mitigation is 

necessary to ensure that the activity 

results in no more than minimal adverse 

environmental effects. For the NWPs, 

the preferred mechanism for providing 

compensatory mitigation is mitigation 

bank credits or in-lieu fee program 

credits (see 33 CFR 332.3(b)(2) and (3)). 

However, if an appropriate number and 

type of mitigation bank or in-lieu credits 

are not available at the time the PCN is 

submitted to the district engineer, the 

district engineer may approve the use of 

permittee-responsible mitigation. 

(2) The amount of compensatory 

mitigation required by the district 

engineer must be sufficient to ensure 

that the authorized activity results in no 

more than minimal individual and 

cumulative adverse environmental 

effects (see 33 CFR 330.1(e)(3)). (See 

also 33 CFR 332.3(f).) 

(3) Since the likelihood of success is 

greater and the impacts to potentially 

valuable uplands are reduced, aquatic 

resource restoration should be the first 

compensatory mitigation option 

considered for permittee-responsible 

mitigation. 

(4) If permittee-responsible mitigation 

is the proposed option, the prospective 

permittee is responsible for submitting a 

mitigation plan. A conceptual or 

detailed mitigation plan may be used by 

the district engineer to make the 

decision on the NWP verification 

request, but a final mitigation plan that 

addresses the applicable requirements 

of 33 CFR 332.4(c)(2) through (14) must 

be approved by the district engineer 

before the permittee begins work in 

waters of the United States, unless the 

district engineer determines that prior 

approval of the final mitigation plan is 

not practicable or not necessary to 

ensure timely completion of the 

required compensatory mitigation (see 

33 CFR 332.3(k)(3)). If permitteeresponsible mitigation is the proposed 

option, and the proposed compensatory 

mitigation site is located on land in 

which another federal agency holds an 

easement, the district engineer will 

coordinate with that federal agency to 

determine if proposed compensatory 

mitigation project is compatible with 

the terms of the easement. 

(5) If mitigation bank or in-lieu fee 

program credits are the proposed 

option, the mitigation plan needs to 

address only the baseline conditions at 

the impact site and the number of 

credits to be provided (see 33 CFR 

332.4(c)(1)(ii)). 

(6) Compensatory mitigation 

requirements (e.g., resource type and 

amount to be provided as compensatory 

mitigation, site protection, ecological 

performance standards, monitoring 

requirements) may be addressed 

through conditions added to the NWP 

authorization, instead of components of 

a compensatory mitigation plan (see 33 

CFR 332.4(c)(1)(ii)). 

(g) Compensatory mitigation will not 

be used to increase the acreage losses 

allowed by the acreage limits of the 

NWPs. For example, if an NWP has an 

acreage limit of 1⁄2-acre, it cannot be 

used to authorize any NWP activity 

resulting in the loss of greater than 1⁄2- 

acre of waters of the United States, even 

if compensatory mitigation is provided 

that replaces or restores some of the lost 

waters. However, compensatory 

mitigation can and should be used, as 

necessary, to ensure that an NWP 

activity already meeting the established 

acreage limits also satisfies the no more 

than minimal impact requirement for 

the NWPs. 

(h) Permittees may propose the use of 

mitigation banks, in-lieu fee programs, 

or permittee-responsible mitigation. 

When developing a compensatory 

mitigation proposal, the permittee must 

consider appropriate and practicable 

options consistent with the framework 

at 33 CFR 332.3(b). For activities 

resulting in the loss of marine or 

estuarine resources, permitteeresponsible mitigation may be 

environmentally preferable if there are 

no mitigation banks or in-lieu fee 

programs in the area that have marine 

or estuarine credits available for sale or 

transfer to the permittee. For permitteeresponsible mitigation, the special 

conditions of the NWP verification must 

clearly indicate the party or parties 

responsible for the implementation and 

2872 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

performance of the compensatory 

mitigation project, and, if required, its 

long-term management. 

(i) Where certain functions and 

services of waters of the United States 

are permanently adversely affected by a 

regulated activity, such as discharges of 

dredged or fill material into waters of 

the United States that will convert a 

forested or scrub-shrub wetland to a 

herbaceous wetland in a permanently 

maintained utility line right-of-way, 

mitigation may be required to reduce 

the adverse environmental effects of the 

activity to the no more than minimal 

level. 

24. Safety of Impoundment 

Structures. To ensure that all 

impoundment structures are safely 

designed, the district engineer may 

require non-Federal applicants to 

demonstrate that the structures comply 

with established state or federal, dam 

safety criteria or have been designed by 

qualified persons. The district engineer 

may also require documentation that the 

design has been independently 

reviewed by similarly qualified persons, 

and appropriate modifications made to 

ensure safety. 

25. Water Quality. (a) Where the 

certifying authority (state, authorized 

tribe, or EPA, as appropriate) has not 

previously certified compliance of an 

NWP with CWA section 401, a CWA 

section 401 water quality certification 

for the proposed discharge must be 

obtained or waived (see 33 CFR 

330.4(c)). If the permittee cannot 

comply with all of the conditions of a 

water quality certification previously 

issued by certifying authority for the 

issuance of the NWP, then the permittee 

must obtain a water quality certification 

or waiver for the proposed discharge in 

order for the activity to be authorized by 

an NWP. 

(b) If the NWP activity requires preconstruction notification and the 

certifying authority has not previously 

certified compliance of an NWP with 

CWA section 401, the proposed 

discharge is not authorized by an NWP 

until water quality certification is 

obtained or waived. If the certifying 

authority issues a water quality 

certification for the proposed discharge, 

the permittee must submit a copy of the 

certification to the district engineer. The 

discharge is not authorized by an NWP 

until the district engineer has notified 

the permittee that the water quality 

certification requirement has been 

satisfied by the issuance of a water 

quality certification or a waiver. 

(c) The district engineer or certifying 

authority may require additional water 

quality management measures to ensure 

that the authorized activity does not 

result in more than minimal degradation 

of water quality. 

26. Coastal Zone Management. In 

coastal states where an NWP has not 

previously received a state coastal zone 

management consistency concurrence, 

an individual state coastal zone 

management consistency concurrence 

must be obtained, or a presumption of 

concurrence must occur (see 33 CFR 

330.4(d)). If the permittee cannot 

comply with all of the conditions of a 

coastal zone management consistency 

concurrence previously issued by the 

state, then the permittee must obtain an 

individual coastal zone management 

consistency concurrence or 

presumption of concurrence in order for 

the activity to be authorized by an NWP. 

The district engineer or a state may 

require additional measures to ensure 

that the authorized activity is consistent 

with state coastal zone management 

requirements. 

27. Regional and Case-By-Case 

Conditions. The activity must comply 

with any regional conditions that may 

have been added by the Division 

Engineer (see 33 CFR 330.4(e)) and with 

any case specific conditions added by 

the Corps or by the state, Indian Tribe, 

or U.S. EPA in its CWA section 401 

Water Quality Certification, or by the 

state in its Coastal Zone Management 

Act consistency determination. 

28. Use of Multiple Nationwide 

Permits. The use of more than one NWP 

for a single and complete project is 

authorized, subject to the following 

restrictions: 

(a) If only one of the NWPs used to 

authorize the single and complete 

project has a specified acreage limit, the 

acreage loss of waters of the United 

States cannot exceed the acreage limit of 

the NWP with the highest specified 

acreage limit. For example, if a road 

crossing over tidal waters is constructed 

under NWP 14, with associated bank 

stabilization authorized by NWP 13, the 

maximum acreage loss of waters of the 

United States for the total project cannot 

exceed 1⁄3-acre. 

(b) If one or more of the NWPs used 

to authorize the single and complete 

project has specified acreage limits, the 

acreage loss of waters of the United 

States authorized by those NWPs cannot 

exceed their respective specified acreage 

limits. For example, if a commercial 

development is constructed under NWP 

39, and the single and complete project 

includes the filling of an upland ditch 

authorized by NWP 46, the maximum 

acreage loss of waters of the United 

States for the commercial development 

under NWP 39 cannot exceed 1⁄2-acre, 

and the total acreage loss of waters of 

United States due to the NWP 39 and 46 

activities cannot exceed 1 acre. 

29. Transfer of Nationwide Permit 

Verifications. If the permittee sells the 

property associated with a nationwide 

permit verification, the permittee may 

transfer the nationwide permit 

verification to the new owner by 

submitting a letter to the appropriate 

Corps district office to validate the 

transfer. A copy of the nationwide 

permit verification must be attached to 

the letter, and the letter must contain 

the following statement and signature: 

‘‘When the structures or work 

authorized by this nationwide permit 

are still in existence at the time the 

property is transferred, the terms and 

conditions of this nationwide permit, 

including any special conditions, will 

continue to be binding on the new 

owner(s) of the property. To validate the 

transfer of this nationwide permit and 

the associated liabilities associated with 

compliance with its terms and 

conditions, have the transferee sign and 

date below.’’ 

lllllllllllllllllllll

(Transferee) 

lllllllllllllllllllll

(Date) 

30. Compliance Certification. Each 

permittee who receives an NWP 

verification letter from the Corps must 

provide a signed certification 

documenting completion of the 

authorized activity and implementation 

of any required compensatory 

mitigation. The success of any required 

permittee-responsible mitigation, 

including the achievement of ecological 

performance standards, will be 

addressed separately by the district 

engineer. The Corps will provide the 

permittee the certification document 

with the NWP verification letter. The 

certification document will include: 

(a) A statement that the authorized 

activity was done in accordance with 

the NWP authorization, including any 

general, regional, or activity-specific 

conditions; 

(b) A statement that the 

implementation of any required 

compensatory mitigation was completed 

in accordance with the permit 

conditions. If credits from a mitigation 

bank or in-lieu fee program are used to 

satisfy the compensatory mitigation 

requirements, the certification must 

include the documentation required by 

33 CFR 332.3(l)(3) to confirm that the 

permittee secured the appropriate 

number and resource type of credits; 

and 

(c) The signature of the permittee 

certifying the completion of the activity 

and mitigation. 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2873 

The completed certification document 

must be submitted to the district 

engineer within 30 days of completion 

of the authorized activity or the 

implementation of any required 

compensatory mitigation, whichever 

occurs later. 

31. Activities Affecting Structures or 

Works Built by the United States. If an 

NWP activity also requires review by, or 

permission from, the Corps pursuant to 

33 U.S.C. 408 because it will alter or 

temporarily or permanently occupy or 

use a U.S. Army Corps of Engineers 

(USACE) federally authorized Civil 

Works project (a ‘‘USACE project’’), the 

prospective permittee must submit a 

pre-construction notification. See 

paragraph (b)(10) of general condition 

32. An activity that requires section 408 

permission and/or review is not 

authorized by an NWP until the 

appropriate Corps office issues the 

section 408 permission or completes its 

review to alter, occupy, or use the 

USACE project, and the district engineer 

issues a written NWP verification. 

32. Pre-Construction Notification. (a) 

Timing. Where required by the terms of 

the NWP, the prospective permittee 

must notify the district engineer by 

submitting a pre-construction 

notification (PCN) as early as possible. 

The district engineer must determine if 

the PCN is complete within 30 calendar 

days of the date of receipt and, if the 

PCN is determined to be incomplete, 

notify the prospective permittee within 

that 30 day period to request the 

additional information necessary to 

make the PCN complete. The request 

must specify the information needed to 

make the PCN complete. As a general 

rule, district engineers will request 

additional information necessary to 

make the PCN complete only once. 

However, if the prospective permittee 

does not provide all of the requested 

information, then the district engineer 

will notify the prospective permittee 

that the PCN is still incomplete and the 

PCN review process will not commence 

until all of the requested information 

has been received by the district 

engineer. The prospective permittee 

shall not begin the activity until either: 

(1) He or she is notified in writing by 

the district engineer that the activity 

may proceed under the NWP with any 

special conditions imposed by the 

district or division engineer; or 

(2) 45 calendar days have passed from 

the district engineer’s receipt of the 

complete PCN and the prospective 

permittee has not received written 

notice from the district or division 

engineer. However, if the permittee was 

required to notify the Corps pursuant to 

general condition 18 that listed species 

or critical habitat might be affected or 

are in the vicinity of the activity, or to 

notify the Corps pursuant to general 

condition 20 that the activity might 

have the potential to cause effects to 

historic properties, the permittee cannot 

begin the activity until receiving written 

notification from the Corps that there is 

‘‘no effect’’ on listed species or ‘‘no 

potential to cause effects’’ on historic 

properties, or that any consultation 

required under Section 7 of the 

Endangered Species Act (see 33 CFR 

330.4(f)) and/or section 106 of the 

National Historic Preservation Act (see 

33 CFR 330.4(g)) has been completed. If 

the proposed activity requires a written 

waiver to exceed specified limits of an 

NWP, the permittee may not begin the 

activity until the district engineer issues 

the waiver. If the district or division 

engineer notifies the permittee in 

writing that an individual permit is 

required within 45 calendar days of 

receipt of a complete PCN, the permittee 

cannot begin the activity until an 

individual permit has been obtained. 

Subsequently, the permittee’s right to 

proceed under the NWP may be 

modified, suspended, or revoked only in 

accordance with the procedure set forth 

in 33 CFR 330.5(d)(2). 

(b) Contents of Pre-Construction 

Notification: The PCN must be in 

writing and include the following 

information: 

(1) Name, address and telephone 

numbers of the prospective permittee; 

(2) Location of the proposed activity; 

(3) Identify the specific NWP or 

NWP(s) the prospective permittee wants 

to use to authorize the proposed 

activity; 

(4) (i) A description of the proposed 

activity; the activity’s purpose; direct 

and indirect adverse environmental 

effects the activity would cause, 

including the anticipated amount of loss 

of wetlands, other special aquatic sites, 

and other waters expected to result from 

the NWP activity, in acres, linear feet, 

or other appropriate unit of measure; a 

description of any proposed mitigation 

measures intended to reduce the 

adverse environmental effects caused by 

the proposed activity; and any other 

NWP(s), regional general permit(s), or 

individual permit(s) used or intended to 

be used to authorize any part of the 

proposed project or any related activity, 

including other separate and distant 

crossings for linear projects that require 

Department of the Army authorization 

but do not require pre-construction 

notification. The description of the 

proposed activity and any proposed 

mitigation measures should be 

sufficiently detailed to allow the district 

engineer to determine that the adverse 

environmental effects of the activity will 

be no more than minimal and to 

determine the need for compensatory 

mitigation or other mitigation measures. 

(ii) For linear projects where one or 

more single and complete crossings 

require pre-construction notification, 

the PCN must include the quantity of 

anticipated losses of wetlands, other 

special aquatic sites, and other waters 

for each single and complete crossing of 

those wetlands, other special aquatic 

sites, and other waters (including those 

single and complete crossings 

authorized by an NWP but do not 

require PCNs). This information will be 

used by the district engineer to evaluate 

the cumulative adverse environmental 

effects of the proposed linear project, 

and does not change those non-PCN 

NWP activities into NWP PCNs. 

(iii) Sketches should be provided 

when necessary to show that the activity 

complies with the terms of the NWP. 

(Sketches usually clarify the activity 

and when provided results in a quicker 

decision. Sketches should contain 

sufficient detail to provide an 

illustrative description of the proposed 

activity (e.g., a conceptual plan), but do 

not need to be detailed engineering 

plans); 

(5) The PCN must include a 

delineation of wetlands, other special 

aquatic sites, and other waters, such as 

lakes and ponds, and perennial and 

intermittent streams, on the project site. 

Wetland delineations must be prepared 

in accordance with the current method 

required by the Corps. The permittee 

may ask the Corps to delineate the 

special aquatic sites and other waters on 

the project site, but there may be a delay 

if the Corps does the delineation, 

especially if the project site is large or 

contains many wetlands, other special 

aquatic sites, and other waters. 

Furthermore, the 45-day period will not 

start until the delineation has been 

submitted to or completed by the Corps, 

as appropriate; 

(6) If the proposed activity will result 

in the loss of greater than 1⁄10-acre of 

wetlands or 3⁄100-acre of stream bed and 

a PCN is required, the prospective 

permittee must submit a statement 

describing how the mitigation 

requirement will be satisfied, or 

explaining why the adverse 

environmental effects are no more than 

minimal and why compensatory 

mitigation should not be required. As an 

alternative, the prospective permittee 

may submit a conceptual or detailed 

mitigation plan. 

(7) For non-federal permittees, if any 

listed species (or species proposed for 

listing) or designated critical habitat (or 

critical habitat proposed for such 

2874 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

designation) might be affected or is in 

the vicinity of the activity, or if the 

activity is located in designated critical 

habitat (or critical habitat proposed for 

such designation), the PCN must 

include the name(s) of those endangered 

or threatened species (or species 

proposed for listing) that might be 

affected by the proposed activity or 

utilize the designated critical habitat (or 

critical habitat proposed for such 

designation) that might be affected by 

the proposed activity. For NWP 

activities that require pre-construction 

notification, Federal permittees must 

provide documentation demonstrating 

compliance with the Endangered 

Species Act; 

(8) For non-federal permittees, if the 

NWP activity might have the potential 

to cause effects to a historic property 

listed on, determined to be eligible for 

listing on, or potentially eligible for 

listing on, the National Register of 

Historic Places, the PCN must state 

which historic property might have the 

potential to be affected by the proposed 

activity or include a vicinity map 

indicating the location of the historic 

property. For NWP activities that 

require pre-construction notification, 

Federal permittees must provide 

documentation demonstrating 

compliance with section 106 of the 

National Historic Preservation Act; 

(9) For an activity that will occur in 

a component of the National Wild and 

Scenic River System, or in a river 

officially designated by Congress as a 

‘‘study river’’ for possible inclusion in 

the system while the river is in an 

official study status, the PCN must 

identify the Wild and Scenic River or 

the ‘‘study river’’ (see general condition 

16); and 

(10) For an NWP activity that requires 

permission from, or review by, the 

Corps pursuant to 33 U.S.C. 408 because 

it will alter or temporarily or 

permanently occupy or use a U.S. Army 

Corps of Engineers federally authorized 

civil works project, the pre-construction 

notification must include a statement 

confirming that the project proponent 

has submitted a written request for 

section 408 permission from, or review 

by, the Corps office having jurisdiction 

over that USACE project. 

(c) Form of Pre-Construction 

Notification: The nationwide permit 

pre-construction notification form 

(Form ENG 6082) should be used for 

NWP PCNs. A letter containing the 

required information may also be used. 

Applicants may provide electronic files 

of PCNs and supporting materials if the 

district engineer has established tools 

and procedures for electronic 

submittals. 

(d) Agency Coordination: (1) The 

district engineer will consider any 

comments from Federal and state 

agencies concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs and the 

need for mitigation to reduce the 

activity’s adverse environmental effects 

so that they are no more than minimal. 

(2) Agency coordination is required 

for: (i) All NWP activities that require 

pre-construction notification and result 

in the loss of greater than 1⁄2-acre of 

waters of the United States; (ii) NWP 13 

activities in excess of 500 linear feet, 

fills greater than one cubic yard per 

running foot, or involve discharges of 

dredged or fill material into special 

aquatic sites; and (iii) NWP 54 activities 

in excess of 500 linear feet, or that 

extend into the waterbody more than 30 

feet from the mean low water line in 

tidal waters or the ordinary high water 

mark in the Great Lakes. 

(3) When agency coordination is 

required, the district engineer will 

immediately provide (e.g., via email, 

facsimile transmission, overnight mail, 

or other expeditious manner) a copy of 

the complete PCN to the appropriate 

Federal or state offices (FWS, state 

natural resource or water quality 

agency, EPA, and, if appropriate, the 

NMFS). With the exception of NWP 37, 

these agencies will have 10 calendar 

days from the date the material is 

transmitted to notify the district 

engineer via telephone, facsimile 

transmission, or email that they intend 

to provide substantive, site-specific 

comments. The comments must explain 

why the agency believes the adverse 

environmental effects will be more than 

minimal. If so contacted by an agency, 

the district engineer will wait an 

additional 15 calendar days before 

making a decision on the preconstruction notification. The district 

engineer will fully consider agency 

comments received within the specified 

time frame concerning the proposed 

activity’s compliance with the terms 

and conditions of the NWPs, including 

the need for mitigation to ensure that 

the net adverse environmental effects of 

the proposed activity are no more than 

minimal. The district engineer will 

provide no response to the resource 

agency, except as provided below. The 

district engineer will indicate in the 

administrative record associated with 

each pre-construction notification that 

the resource agencies’ concerns were 

considered. For NWP 37, the emergency 

watershed protection and rehabilitation 

activity may proceed immediately in 

cases where there is an unacceptable 

hazard to life or a significant loss of 

property or economic hardship will 

occur. The district engineer will 

consider any comments received to 

decide whether the NWP 37 

authorization should be modified, 

suspended, or revoked in accordance 

with the procedures at 33 CFR 330.5. 

(4) In cases of where the prospective 

permittee is not a Federal agency, the 

district engineer will provide a response 

to NMFS within 30 calendar days of 

receipt of any Essential Fish Habitat 

conservation recommendations, as 

required by section 305(b)(4)(B) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

(5) Applicants are encouraged to 

provide the Corps with either electronic 

files or multiple copies of preconstruction notifications to expedite 

agency coordination. 

D. District Engineer’s Decision 

1. In reviewing the PCN for the 

proposed activity, the district engineer 

will determine whether the activity 

authorized by the NWP will result in 

more than minimal individual or 

cumulative adverse environmental 

effects or may be contrary to the public 

interest. If a project proponent requests 

authorization by a specific NWP, the 

district engineer should issue the NWP 

verification for that activity if it meets 

the terms and conditions of that NWP, 

unless he or she determines, after 

considering mitigation, that the 

proposed activity will result in more 

than minimal individual and 

cumulative adverse effects on the 

aquatic environment and other aspects 

of the public interest and exercises 

discretionary authority to require an 

individual permit for the proposed 

activity. For a linear project, this 

determination will include an 

evaluation of the single and complete 

crossings of waters of the United States 

that require PCNs to determine whether 

they individually satisfy the terms and 

conditions of the NWP(s), as well as the 

cumulative effects caused by all of the 

crossings of waters of the United States 

authorized by an NWP. If an applicant 

requests a waiver of an applicable limit, 

as provided for in NWPs 13, 36, or 54, 

the district engineer will only grant the 

waiver upon a written determination 

that the NWP activity will result in only 

minimal individual and cumulative 

adverse environmental effects. 

2. When making minimal adverse 

environmental effects determinations 

the district engineer will consider the 

direct and indirect effects caused by the 

NWP activity. He or she will also 

consider the cumulative adverse 

environmental effects caused by 

activities authorized by an NWP and 

whether those cumulative adverse 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2875 

environmental effects are no more than 

minimal. The district engineer will also 

consider site specific factors, such as the 

environmental setting in the vicinity of 

the NWP activity, the type of resource 

that will be affected by the NWP 

activity, the functions provided by the 

aquatic resources that will be affected 

by the NWP activity, the degree or 

magnitude to which the aquatic 

resources perform those functions, the 

extent that aquatic resource functions 

will be lost as a result of the NWP 

activity (e.g., partial or complete loss), 

the duration of the adverse effects 

(temporary or permanent), the 

importance of the aquatic resource 

functions to the region (e.g., watershed 

or ecoregion), and mitigation required 

by the district engineer. If an 

appropriate functional or condition 

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. The district engineer 

may add case-specific special 

conditions to the NWP authorization to 

address site-specific environmental 

concerns. 

3. If the proposed activity requires a 

PCN and will result in a loss of greater 

than 1⁄10-acre of wetlands or 3⁄100-acre of 

stream bed, the prospective permittee 

should submit a mitigation proposal 

with the PCN. Applicants may also 

propose compensatory mitigation for 

NWP activities with smaller impacts, or 

for impacts to other types of waters. The 

district engineer will consider any 

proposed compensatory mitigation or 

other mitigation measures the applicant 

has included in the proposal in 

determining whether the net adverse 

environmental effects of the proposed 

activity are no more than minimal. The 

compensatory mitigation proposal may 

be either conceptual or detailed. If the 

district engineer determines that the 

activity complies with the terms and 

conditions of the NWP and that the 

adverse environmental effects are no 

more than minimal, after considering 

mitigation, the district engineer will 

notify the permittee and include any 

activity-specific conditions in the NWP 

verification the district engineer deems 

necessary. Conditions for compensatory 

mitigation requirements must comply 

with the appropriate provisions at 33 

CFR 332.3(k). The district engineer must 

approve the final mitigation plan before 

the permittee commences work in 

waters of the United States, unless the 

district engineer determines that prior 

approval of the final mitigation plan is 

not practicable or not necessary to 

ensure timely completion of the 

required compensatory mitigation. If the 

prospective permittee elects to submit a 

compensatory mitigation plan with the 

PCN, the district engineer will 

expeditiously review the proposed 

compensatory mitigation plan. The 

district engineer must review the 

proposed compensatory mitigation plan 

within 45 calendar days of receiving a 

complete PCN and determine whether 

the proposed mitigation would ensure 

that the NWP activity results in no more 

than minimal adverse environmental 

effects. If the net adverse environmental 

effects of the NWP activity (after 

consideration of the mitigation 

proposal) are determined by the district 

engineer to be no more than minimal, 

the district engineer will provide a 

timely written response to the applicant. 

The response will state that the NWP 

activity can proceed under the terms 

and conditions of the NWP, including 

any activity-specific conditions added 

to the NWP authorization by the district 

engineer. 

4. If the district engineer determines 

that the adverse environmental effects of 

the proposed activity are more than 

minimal, then the district engineer will 

notify the applicant either: (a) That the 

activity does not qualify for 

authorization under the NWP and 

instruct the applicant on the procedures 

to seek authorization under an 

individual permit; (b) that the activity is 

authorized under the NWP subject to 

the applicant’s submission of a 

mitigation plan that would reduce the 

adverse environmental effects so that 

they are no more than minimal; or (c) 

that the activity is authorized under the 

NWP with specific modifications or 

conditions. Where the district engineer 

determines that mitigation is required to 

ensure no more than minimal adverse 

environmental effects, the activity will 

be authorized within the 45-day PCN 

period (unless additional time is 

required to comply with general 

conditions 18, 20, and/or 31), with 

activity-specific conditions that state the 

mitigation requirements. The 

authorization will include the necessary 

conceptual or detailed mitigation plan 

or a requirement that the applicant 

submit a mitigation plan that would 

reduce the adverse environmental 

effects so that they are no more than 

minimal. When compensatory 

mitigation is required, no work in 

waters of the United States may occur 

until the district engineer has approved 

a specific mitigation plan or has 

determined that prior approval of a final 

mitigation plan is not practicable or not 

necessary to ensure timely completion 

of the required compensatory 

mitigation. 

E. Further Information 

1. District engineers have authority to 

determine if an activity complies with 

the terms and conditions of an NWP. 

2. NWPs do not obviate the need to 

obtain other federal, state, or local 

permits, approvals, or authorizations 

required by law. 

3. NWPs do not grant any property 

rights or exclusive privileges. 

4. NWPs do not authorize any injury 

to the property or rights of others. 

5. NWPs do not authorize interference 

with any existing or proposed Federal 

project (see general condition 31). 

F. Definitions 

Best management practices (BMPs): 

Policies, practices, procedures, or 

structures implemented to mitigate the 

adverse environmental effects on 

surface water quality resulting from 

development. BMPs are categorized as 

structural or non-structural. 

Compensatory mitigation: The 

restoration (re-establishment or 

rehabilitation), establishment (creation), 

enhancement, and/or in certain 

circumstances preservation of aquatic 

resources for the purposes of offsetting 

unavoidable adverse impacts which 

remain after all appropriate and 

practicable avoidance and minimization 

has been achieved. 

Currently serviceable: Useable as is or 

with some maintenance, but not so 

degraded as to essentially require 

reconstruction. 

Direct effects: Effects that are caused 

by the activity and occur at the same 

time and place. 

Discharge: The term ‘‘discharge’’ 

means any discharge of dredged or fill 

material into waters of the United 

States. 

Ecological reference: A model used to 

plan and design an aquatic habitat and 

riparian area restoration, enhancement, 

or establishment activity under NWP 27. 

An ecological reference may be based on 

the structure, functions, and dynamics 

of an aquatic habitat type or a riparian 

area type that currently exists in the 

region where the proposed NWP 27 

activity is located. Alternatively, an 

ecological reference may be based on a 

conceptual model for the aquatic habitat 

type or riparian area type to be restored, 

enhanced, or established as a result of 

the proposed NWP 27 activity. An 

ecological reference takes into account 

the range of variation of the aquatic 

habitat type or riparian area type in the 

region. 

Enhancement: The manipulation of 

the physical, chemical, or biological 

2876 Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 

characteristics of an aquatic resource to 

heighten, intensify, or improve a 

specific aquatic resource function(s). 

Enhancement results in the gain of 

selected aquatic resource function(s), 

but may also lead to a decline in other 

aquatic resource function(s). 

Enhancement does not result in a gain 

in aquatic resource area. 

Establishment (creation): The 

manipulation of the physical, chemical, 

or biological characteristics present to 

develop an aquatic resource that did not 

previously exist at an upland site. 

Establishment results in a gain in 

aquatic resource area. 

High Tide Line: The line of 

intersection of the land with the water’s 

surface at the maximum height reached 

by a rising tide. The high tide line may 

be determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

Historic Property: Any prehistoric or 

historic district, site (including 

archaeological site), building, structure, 

or other object included in, or eligible 

for inclusion in, the National Register of 

Historic Places maintained by the 

Secretary of the Interior. This term 

includes artifacts, records, and remains 

that are related to and located within 

such properties. The term includes 

properties of traditional religious and 

cultural importance to an Indian tribe or 

Native Hawaiian organization and that 

meet the National Register criteria (36 

CFR part 60). 

Independent utility: A test to 

determine what constitutes a single and 

complete non-linear project in the Corps 

Regulatory Program. A project is 

considered to have independent utility 

if it would be constructed absent the 

construction of other projects in the 

project area. Portions of a multi-phase 

project that depend upon other phases 

of the project do not have independent 

utility. Phases of a project that would be 

constructed even if the other phases 

were not built can be considered as 

separate single and complete projects 

with independent utility. 

Indirect effects: Effects that are caused 

by the activity and are later in time or 

farther removed in distance, but are still 

reasonably foreseeable. 

Loss of waters of the United States: 

Waters of the United States that are 

permanently adversely affected by 

filling, flooding, excavation, or drainage 

because of the regulated activity. The 

loss of stream bed includes the acres of 

stream bed that are permanently 

adversely affected by filling or 

excavation because of the regulated 

activity. Permanent adverse effects 

include permanent discharges of 

dredged or fill material that change an 

aquatic area to dry land, increase the 

bottom elevation of a waterbody, or 

change the use of a waterbody. The 

acreage of loss of waters of the United 

States is a threshold measurement of the 

impact to jurisdictional waters or 

wetlands for determining whether a 

project may qualify for an NWP; it is not 

a net threshold that is calculated after 

considering compensatory mitigation 

that may be used to offset losses of 

aquatic functions and services. Waters 

of the United States temporarily filled, 

flooded, excavated, or drained, but 

restored to pre-construction contours 

and elevations after construction, are 

not included in the measurement of loss 

of waters of the United States. Impacts 

resulting from activities that do not 

require Department of the Army 

authorization, such as activities eligible 

for exemptions under section 404(f) of 

the Clean Water Act, are not considered 

when calculating the loss of waters of 

the United States. 

Navigable waters: Waters subject to 

section 10 of the Rivers and Harbors Act 

of 1899. These waters are defined at 33 

CFR part 329. 

Non-tidal wetland: A non-tidal 

wetland is a wetland that is not subject 

to the ebb and flow of tidal waters. Nontidal wetlands contiguous to tidal 

waters are located landward of the high 

tide line (i.e., spring high tide line). 

Open water: For purposes of the 

NWPs, an open water is any area that in 

a year with normal patterns of 

precipitation has water flowing or 

standing above ground to the extent that 

an ordinary high water mark can be 

determined. Aquatic vegetation within 

the area of flowing or standing water is 

either non-emergent, sparse, or absent. 

Vegetated shallows are considered to be 

open waters. Examples of ‘‘open waters’’ 

include rivers, streams, lakes, and 

ponds. 

Ordinary High Water Mark: The term 

ordinary high water mark means that 

line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

Perennial stream: A perennial stream 

has surface water flowing continuously 

year-round during a typical year. 

Practicable: Available and capable of 

being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes. 

Pre-construction notification: A 

request submitted by the project 

proponent to the Corps for confirmation 

that a particular activity is authorized 

by nationwide permit. The request may 

be a permit application, letter, or similar 

document that includes information 

about the proposed work and its 

anticipated environmental effects. Preconstruction notification may be 

required by the terms and conditions of 

a nationwide permit, or by regional 

conditions. A pre-construction 

notification may be voluntarily 

submitted in cases where preconstruction notification is not required 

and the project proponent wants 

confirmation that the activity is 

authorized by nationwide permit. 

Preservation: The removal of a threat 

to, or preventing the decline of, aquatic 

resources by an action in or near those 

aquatic resources. This term includes 

activities commonly associated with the 

protection and maintenance of aquatic 

resources through the implementation 

of appropriate legal and physical 

mechanisms. Preservation does not 

result in a gain of aquatic resource area 

or functions. 

Re-establishment: The manipulation 

of the physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former aquatic resource. Reestablishment results in rebuilding a 

former aquatic resource and results in a 

gain in aquatic resource area and 

functions. 

Rehabilitation: The manipulation of 

the physical, chemical, or biological 

characteristics of a site with the goal of 

repairing natural/historic functions to a 

degraded aquatic resource. 

Rehabilitation results in a gain in 

aquatic resource function, but does not 

result in a gain in aquatic resource area. 

Restoration: The manipulation of the 

physical, chemical, or biological 

characteristics of a site with the goal of 

returning natural/historic functions to a 

former or degraded aquatic resource. For 

the purpose of tracking net gains in 

aquatic resource area, restoration is 

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations 2877 

divided into two categories: Reestablishment and rehabilitation. 

Riffle and pool complex: Riffle and 

pool complexes are special aquatic sites 

under the 404(b)(1) Guidelines. Riffle 

and pool complexes sometimes 

characterize steep gradient sections of 

streams. Such stream sections are 

recognizable by their hydraulic 

characteristics. The rapid movement of 

water over a course 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. A slower 

stream velocity, a streaming flow, a 

smooth surface, and a finer substrate 

characterize pools. 

Riparian areas: Riparian areas are 

lands next to streams, lakes, and 

estuarine-marine shorelines. Riparian 

areas are transitional between terrestrial 

and aquatic ecosystems, through which 

surface and subsurface hydrology 

connects riverine, lacustrine, estuarine, 

and marine waters with their adjacent 

wetlands, non-wetland waters, or 

uplands. Riparian areas provide a 

variety of ecological functions and 

services and help improve or maintain 

local water quality. (See general 

condition 23.) 

Shellfish seeding: The placement of 

shellfish seed and/or suitable substrate 

to increase shellfish production. 

Shellfish seed consists of immature 

individual shellfish or individual 

shellfish attached to shells or shell 

fragments (i.e., spat on shell). Suitable 

substrate may consist of shellfish shells, 

shell fragments, or other appropriate 

materials placed into waters for 

shellfish habitat. 

Single and complete linear project: A 

linear project is a project constructed for 

the purpose of getting people, goods, or 

services from a point of origin to a 

terminal point, which often involves 

multiple crossings of one or more 

waterbodies at separate and distant 

locations. The term ‘‘single and 

complete project’’ is defined as that 

portion of the total linear project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers that 

includes all crossings of a single water 

of the United States (i.e., a single 

waterbody) at a specific location. For 

linear projects crossing a single or 

multiple waterbodies several times at 

separate and distant locations, each 

crossing is considered a single and 

complete project for purposes of NWP 

authorization. However, individual 

channels in a braided stream or river, or 

individual arms of a large, irregularly 

shaped wetland or lake, etc., are not 

separate waterbodies, and crossings of 

such features cannot be considered 

separately. 

Single and complete non-linear 

project: For non-linear projects, the term 

‘‘single and complete project’’ is defined 

at 33 CFR 330.2(i) as the total project 

proposed or accomplished by one 

owner/developer or partnership or other 

association of owners/developers. A 

single and complete non-linear project 

must have independent utility (see 

definition of ‘‘independent utility’’). 

Single and complete non-linear projects 

may not be ‘‘piecemealed’’ to avoid the 

limits in an NWP authorization. 

Stormwater management: Stormwater 

management is the mechanism for 

controlling stormwater runoff for the 

purposes of reducing downstream 

erosion, water quality degradation, and 

flooding and mitigating the adverse 

effects of changes in land use on the 

aquatic environment. 

Stormwater management facilities: 

Stormwater management facilities are 

those facilities, including but not 

limited to, stormwater retention and 

detention ponds and best management 

practices, which retain water for a 

period of time to control runoff and/or 

improve the quality (i.e., by reducing 

the concentration of nutrients, 

sediments, hazardous substances and 

other pollutants) of stormwater runoff. 

Stream bed: The substrate of the 

stream channel between the ordinary 

high water marks. The substrate may be 

bedrock or inorganic particles that range 

in size from clay to boulders. Wetlands 

contiguous to the stream bed, but 

outside of the ordinary high water 

marks, are not considered part of the 

stream bed. 

Stream channelization: The 

manipulation of a stream’s course, 

condition, capacity, or location that 

causes more than minimal interruption 

of normal stream processes. A 

channelized jurisdictional stream 

remains a water of the United States. 

Structure: An object that is arranged 

in a definite pattern of organization. 

Examples of structures include, without 

limitation, any pier, boat dock, boat 

ramp, wharf, dolphin, weir, boom, 

breakwater, bulkhead, revetment, 

riprap, jetty, artificial island, artificial 

reef, permanent mooring structure, 

power transmission line, permanently 

moored floating vessel, piling, aid to 

navigation, or any other manmade 

obstacle or obstruction. 

Tidal wetland: A tidal wetland is a 

jurisdictional wetland that is inundated 

by tidal waters. Tidal waters rise and 

fall in a predictable and measurable 

rhythm or cycle due to the gravitational 

pulls of the moon and sun. Tidal waters 

end where the rise and fall of the water 

surface can no longer be practically 

measured in a predictable rhythm due 

to masking by other waters, wind, or 

other effects. Tidal wetlands are located 

channelward of the high tide line. 

Tribal lands: Any lands title to which 

is either: (1) Held in trust by the United 

States for the benefit of any Indian tribe 

or individual; or (2) held by any Indian 

tribe or individual subject to restrictions 

by the United States against alienation. 

Tribal rights: Those rights legally 

accruing to a tribe or tribes by virtue of 

inherent sovereign authority, 

unextinguished aboriginal title, treaty, 

statute, judicial decisions, executive 

order or agreement, and that give rise to 

legally enforceable remedies. 

Vegetated shallows: Vegetated 

shallows are special aquatic sites under 

the 404(b)(1) Guidelines. They are areas 

that are permanently inundated and 

under normal circumstances have 

rooted aquatic vegetation, such as 

seagrasses in marine and estuarine 

systems and a variety of vascular rooted 

plants in freshwater systems. 

Waterbody: For purposes of the 

NWPs, a waterbody is a ‘‘water of the 

United States.’’ If a wetland is adjacent 

to a waterbody determined to be a water 

of the United States, that waterbody and 

any adjacent wetlands are considered 

together as a single aquatic unit (see 33 

CFR 328.4(c)(2)). 

[FR Doc. 2021–00102 Filed 1–12–21; 8:45 am] 

BILLING CODE 3720–58–P