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U.S. Coast Guard Approved Bridges. NWP 45. (Authorities: Sections 10 and 404). 1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. NWP 12, which serves as a general permit under Section 404 of the Clean Water Act, is designed to streamline the federal permitting process for qualifying oil or natural gas pipeline activities. The first sentence of this NWP provides examples of linear transportation projects that may be authorized by this NWP, and those examples include railways and trails. Because of the PCN requirement and the ability of district and division engineers to modify, suspend, or revoke this NWP when appropriate, the Corps does not believe that it is necessary to impose an additional quantitative limit on this NWP that is specific to losses of stream bed. Modifications of Existing Marinas. a meandering stream), as long as there is sufficient distance between crossings of waters of the United States. The categorical exclusions approved for use with this NWP are identified in a Regulatory Guidance Letter issued by the Corps after a public notice and comment process. 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. check dam, mill dam, irrigation, water supply, recreation, hydroelectric, or cooling pond), but in all cases, it provides little to no storage function. The sections below discuss the comments received and the Corps responses on the 40 existing NWPs and one new NWP being finalized in this rule. 30. One commenter objected to the proposed reissuance of this NWP, as well as the proposed modification, stating that the activities authorized by this NWP may adversely affect salmon and trout that inhabit ditches. Since this NWP authorizes only maintenance activities, and the aquatic resources in these existing facilities usually recover after disturbances caused by periodic maintenance activities, the Corps believes the activities authorized by this NWP result in no more than minimal adverse environmental effects. The district engineer will review the PCN and determine whether ESA Section 7 consultation or conference with the U.S. FWS and/or NMFS is required for the proposed activity. In addition, periodic maintenance is an important component of sustaining the effectiveness of living shorelines in managing erosion and sustaining the living components of a living shoreline. 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.) Activities required for the construction, repair, or replacement of boat ramps, provided the activity meets all of the following criteria: (a) The discharge of dredged or fill material into waters of the United States does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or in the form of pre-cast concrete planks or slabs, unless the district engineer waives the 50 cubic yard limit by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects; (b) The boat ramp does not exceed 20 feet in width, unless the district engineer waives this criterion by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects; (c) The base material is crushed stone, gravel or other suitable material; (d) The excavation is limited to the area necessary for site preparation and all excavated material is removed to an area that has no waters of the United States; and. The Corps did not propose any changes to this NWP. These limited size of these structures help ensure that the authorized discharges of dredged or fill material into waters of the United States result in no more than minimal individual and cumulative adverse environmental effects. A crossing does not have to bisect a water of the United States. This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in-lieu fee projects. . The modification of this NWP clarifies that this NWP can be used to provide DA authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act for sediment releases from reservoirs that require such authorization, as long as those sediment releases rehabilitate downstream habitats and result in net gains in aquatic resource functions and services. Such factors include water and sediment inputs to the river, including upstream, lateral, and downstream inputs; valley geometry, substrate, and vegetation; river geometry, including the cross sectional geometry, planform, and gradient; and the disturbance regime of the river (Wohl et al. (The Corps may request maintenance records in areas where there has not been recent maintenance.) Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities. If the proposed activity does not meet the terms and conditions of the NWP identified in the applicant's 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. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities. 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)). Nationwide Permit 18 SD One commenter said that the Corps needs to develop functional assessment tools to better assess individual and cumulative impacts of bank stabilization on channel and floodplain processes. The district offices administer the NWP program on a day-to-day basis by reviewing PCNs for proposed NWP activities. Section 330.6(d) addresses how NWPs may or may not be combined with individual permits for activities that require DA authorization. In addition, the appropriate amount of sediment that may be released from a reservoir to maintain continuity of sediment transport to restore downstream habitats is affected by a number of factors, which makes it infeasible to establish a national quantitative limit for these activities. (86 FR 2874-2875). 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. 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. The project plans for the proposed aquatic habitat restoration, enhancement, or establishment activity, plus the delineation of aquatic resources on the project site, are necessary for making certain determinations. state or Corps district). Mooring Buoys. This NWP authorizes a wide variety of bank stabilization activities because bioengineering and living shorelines are effective bank stabilization approaches in limited circumstances. and infrastructure. The Corps recognizes that water reclamation and reuse facilities can be authorized as attendant features of other activities authorized by NWP, such as residential developments (NWP 29), commercial and institutional developments (NWP 39), agricultural activities (NWP 40), and recreational facilities (NWP 42). at 86 FR 2848-2849. The estimated impact acreages in the national decision document for this NWP include both permanent and temporary impacts to waters of the United States, including navigable waters of the United States. 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. The Corps proposed to modify this NWP by adding irrigation ditches. The district engineer will approve the maintenance baseline based on the approved or constructed capacity of the flood control facility, whichever is smaller, including any areas where there are no constructed channels but which are part of the facility. Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part, by another Federal agency or department where: (a) That agency or department has determined, pursuant to the Council on Environmental Quality's implementing regulations for the National Environmental Policy Act (40 CFR part 1500 NWP 15. The structure itself may require a separate section 10 permit if located in navigable waters of the United States. In EPA's view, this outcome does not change if the new or revised certification is issued during an extended reasonable period of time.) Certifying authorities that want to retain their prior certification decisions can confirm their prior positions affirmatively by sending confirmation to the Corps district prior the expiration of the extended reasonable period of time, If a certifying authority chooses not to respond to the Corps district during the extended reasonable period of time, the previous certification decisions will govern in the absence of an updated certification, affirmative confirmation, or other action, such as a denial or waiver. , Corps districts issued public notices seeking comment on proposed regional conditions for the proposed NWPs. Federal Register On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of twelve existing nationwide permits (NWPs). This NWP also authorizes discharges of dredged or fill material in waters of the United States for the reversion of wetlands that were restored, enhanced, or established on prior-converted cropland or on uplands, in accordance with a binding agreement between the landowner and NRCS, FSA, FWS, or their designated state cooperating agencies (even though the restoration, enhancement, or establishment activity did not require a section 404 permit). Sufficient riparian areas must be maintained adjacent to all open water bodies, including streams, to preclude water quality degradation due to erosion and sedimentation. The permittee must submit a pre-construction notification to the district engineer once during the period that this NWP is valid, and the NWP will then authorize discharges of dredge or fill material at an existing operation for the permit term, provided Notification: The national decision document also considers the potential benefits of maintaining these existing flood control management facilities so that they continue to perform their intended functions. NWP 20. check dam, mill dam, irrigation, water supply, recreation, hydroelectric, or cooling pond), but in all cases, it provides little or no storage function. Project proponents may hire coastal engineers and other consultants to help determine which bank stabilization techniques might be feasible and successful at a specific site. Nationwide permits authorize categories of activities that are similar in nature and will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. No comments were received on the proposed reissuance of this NWP. Coastal Zone Management Act consistency concurrences may be issued without conditions, issued with conditions, or denied for specific NWPs. Those activities can be conducted by the ecological restoration industry, government agencies, non-governmental organizations, private individuals, and other entities. e.g., This NWP does not authorize stream channelization or stream relocation projects. offers a preview of documents scheduled to appear in the next day's Bank stabilization activities may be authorized by NWP 13 or other Department of the Army permits. The Corps did not propose any changes to this NWP. One commenter stated that the text of this NWP should include a definition for voluntary wetland restoration projects that includes restoration projects that occur in altered, degraded, and former wetlands. The restoration of the damaged areas, including any bank stabilization, must not exceed the contours, or ordinary high water mark, that existed before the damage occurred. This NWP is reissued as proposed. There may be other indirect effects upstream and downstream of the low-head dam and its impoundment, but the acreage of waters subject to those indirect effects would not normally be calculated because of the difficulties in quantifying those indirect effects. 403). Riprap placed in uplands landward of the ordinary high water mark does not require DA authorization, so the Corps does not have the authority to require the permittee place topsoil in those upland areas and install plants in the topsoil. i.e., Notification: 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. requirement for DA authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899 may occur during multiple times during the 5-year period this NWP is in effect. The sediment releases from reservoirs to rehabilitate downstream habitats do not require a formal restoration plan, but the reservoir operator may develop an operations plan that establishes protocols for sediment releases that are intended to maintain sediment transport continuity to restore downstream habitats. NWP 30. 3 January 2022: Canada, Japan, the Philippines, Singapore, South Korea, and the United States. Nationwide Permit 27 SD The decision document has been prepared in compliance with the requirements of the National Environmental Policy Act (NEPA), the Corps' public interest review regulations, and the Clean Water Act Section 404(b)(1) Guidelines. The paperwork burden associated with the 41 final NWPs is expected to increase by approximately 1,517 hours per year from 198,397 hours to 199,914 hours. Since it was first issued in 1991 (56 FR 59144), this NWP has been issued only under the authority of Section 10 of the Rivers and Harbors Act of 1899. The Corps did not propose any changes to this NWP. The Corps declines to add a definition of stand-alone project to this NWP because that phrase is not used in this NWP. Wetlands are a subset of jurisdictional waters in which this NWP can be used to authorize regulated activities associated with aquatic habitat restoration, enhancement, and establishment. The activity-specific conditions are incorporated into the NWP verification, along with the NWP text and the NWP general conditions. 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. at 86 FR 2758-2760. Despite the potential for water reclamation and reuse facilities to be authorized along with buildings and other features authorized by other NWPs, the Corps believes that issuing a new NWP to authorize discharges of dredged or fill material into waters of the United States for water reclamation and reuse facilities would be beneficial to the regulated public, especially when these facilities are stand-alone facilities and not attendant features of resident developments, commercial developments, or other activities. Several commenters stated they oppose the installation of mooring buoys within tribal lands without coordinating with the tribes. This NWP has two quantitative limits for authorized activities: A 50 cubic yard limit for discharges of dredged or fill material into waters of the United States, and a 20-foot limit for the width of the boat ramp. A few commenters expressed support for allowing the use of more than one ecological reference site. 1/10 This NWP does not authorize development activities. The district engineer will verify that the appropriate documentation has been submitted. Nationwide Permit 25 SD The Corps also declines to impose an overall linear foot limit to linear transportation projects since there can be substantial distances between crossings of waters of the United States, and those crossings may involve different waterbodies and watersheds. 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. 53. This NWP does not authorize beach nourishment or land reclamation activities. The Corps did not propose any changes to this NWP. 29 pp. (h) The living shoreline must be properly maintained, which may require periodic repair of sills, breakwaters, or reefs, or replacing sand fills after severe storms or erosion events. In addition, this commenter said that this NWP authorizes activities that result in more than minimal adverse environmental effects. The use of unsuitable material that is structurally unstable is not authorized. One commenter stated additional clarification on the definition for the Sidewalks may be authorized other NWPs, such as NWPs 29 and 39 if those sidewalks are attendant features of the types of developments authorized by those NWPs. 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. With respect to living shorelines, factors to consider regarding the appropriateness of living shorelines to manage bank erosion in coastal areas include the fetch of the waterbody, shore morphology, depth gradients of nearshore waters, the stability of the existing substrate, tidal range, and marsh elevations (Saleh and Weinstein 2016). Cleanup of Hazardous and Toxic Waste. This feature is not available for this document. One commenter said that bulkheads have more than minimal cumulative adverse impacts and that the Corps should not reissue this NWP because it does not know how many NWP 13 activities occur each year. 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. 823)). NWP 27. The January 13, 2021, final rule addressed the comments received in response to the 2020 Proposal on the NWP general conditions and definitions. NRCS Field Office Technical Guide standards; or. One of these commenters suggested broadening the definition of low-head dam to include different low-head dam configurations or to add a specific height to the definition of low-head dam. Two of these commenters suggested modifying the definition of low-head dam as follows: For the purposes of this NWP, the term low-head dam is generally defined as a dam or weir built across a stream to pass flows from upstream over all, or nearly all, of the width of the dam crest and does not have a separate spillway or spillway gates, but it may have an uncontrolled spillway. At its discretion, the Corps may rescind, revise, or suspend one or more NWPs prior to that time. Emergency Watershed Protection and Rehabilitation. Reshaping Existing Drainage and Irrigation Ditches. linear projects with crossings of separate and distant waters of the United States authorized by NWPs 12, 14, 57, or 58) or non-linear projects authorized with two or more different NWPs ( Index of Nationwide Permits Issued in This Final Rule, https://www.federalregister.gov/d/2021-27441, MODS: Government Publishing Office metadata, https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/, https://www.epa.gov/system/files/documents/2021-08/8-19-21-joint-epa-army-memo-on-cwa-401-implementation_508.pdf, https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/, https://www.habitatblueprint.noaa.gov/living-shorelines/project-map/, Add driveways to examples of activities authorized by this NWP. The Corps is retaining the 30 foot limit for structures and fills extending into the waterway and the 500 linear foot limit for the length of shoreline along which a living shoreline can be constructed. 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. This includes salmon and trout species listed as endangered or threatened under the ESA, as well as salmon and trout species that may be proposed for listing under the ESA. This document is available at: 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 591) (see 33 CFR 322.4(b)). The dam crest is the top of the dam from left abutment to right abutment. Flood control facilities could be located in any type of waters of the United States, such riverine, lacustrine, palustrine, estuarine, and marine waters. . When a district engineer receives a PCN for a proposed NWP 8 activity, a district engineer will evaluate potential effects of the proposed structures on marine mammals that are listed as endangered or threatened under the ESA, as well as marine mammals species proposed for listing under the ESA. C. Comments on Regional Conditioning of Nationwide Permits, D. Response to Comments on Specific Nationwide Permits in This Final Rule, E. Responses to Comments on the Nationwide Permit General Conditions, F. Responses to Comments on the District Engineer's Decision, G. Discussion of Proposed Modifications to Section F, Definitions, A. One commenter stated that this NWP should be reissued with no changes. 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. Accordingly, the Services' ESA 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. One commenter stated support of the PCN notification exemption to continue to allow statewide aquatic habitat restoration and enhancement activities to be conducted in an efficient and timely manner. ), that the activity is categorically excluded from the requirement to prepare an environmental impact statement or environmental assessment analysis, because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment; and. NWP 35. e.g., The Corps did not propose any changes to this NWP. Start Printed Page 73555 prior to commencing the proposed NWP activity, to ensure that the NWP activity complies with the terms and conditions of the NWP, including any conditions the district engineer adds to the NWP authorization in accordance with 33 CFR 330.6(a)(3)(i). In response to the 2020 Proposal, the Corps received comments concerning environmental justice and how it was considered during development of the final rule. See 86 FR 2838-2841 for the comment summaries and responses to comments on the definitions for the 2021 NWPs. Permits are good for thee days. About the Federal Register 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. NWP 54. Indian Tribe or State Administered Section 404 Programs. If an NWP verification includes multiple authorizations using a single NWP ( includes summaries of comments received on the NWP general conditions for the 2020 Proposal, as well as responses to those comments. While bank stabilization activities may have adverse effects on the aquatic environment, to be authorized by this NWP those adverse effects must be no more than minimal on an individual and cumulative basis. The removal of low-head dams also benefits public safety by reducing potential drowning risks for swimmers and users of small watercraft, such as kayaks. One commenter stated that the PCN requirement for activities authorized under (b) of this NWP for sediment and debris removal is unnecessary unless the dredged material is proposed to be redeposited or retained within waters of the United States. 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