PUBLIC NOTICE FOR THE FINAL REGIONAL CONDITIONS IN COLORADO APPLICABLE TO THE 41 NATIONWIDE PERMITS PUBLISHED IN THE FEDERAL REGISTER ON DECEMBER 27, 2021

CESPA
Published Feb. 17, 2022

On December 27, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 73522) announcing the reissuance of 40 existing nationwide permits (NWPs) and one new NWP, as well as the reissuance of NWP general conditions and definitions with some modifications. These 41 NWPs will go into effect on February 25, 2022, and they will expire on March 14, 2026:

  • NWP 1 – Aids to Navigation
  • NWP 2 – Structures in Artificial Canals
  • NWP 3 – Maintenance
  • NWP 4 – Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
  • NWP 5 – Scientific Measurement Devices
  • NWP 6 – Survey Activities
  • NWP 7 – Outfall Structures and Associated Intake Structures
  • NWP 8 – Oil and Gas Structures on the Outer Continental Shelf
  • NWP 9 – Structures in Fleeting and Anchorage Areas
  • NWP 10 – Mooring Buoys
  • NWP 11 – Temporary Recreational Structures
  • NWP 13 – Bank Stabilization
  • NWP 14 – Linear Transportation Projects
  • NWP 15 – U.S. Coast Guard Approved Bridges
  • NWP 16 – Return Water from Upland Contained Disposal Areas
  • NWP 17 – Hydropower Projects
  • NWP 18 – Minor Discharges
  • NWP 19 – Minor Dredging
  • NWP 20 – Response Operations for Oil or Hazardous Substances
  • NWP 22 – Removal of Vessels
  • NWP 23 – Approved Categorical Exclusions
  • NWP 24 – Indian Tribe or State Administered Section 404 Programs
  • NWP 25 – Structural Discharges
  • NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities
  • NWP 28 – Modifications of Existing Marinas
  • NWP 30 – Moist Soil Management for Wildlife
  • NWP 31 – Maintenance of Existing Flood Control Facilities
  • NWP 32 – Completed Enforcement Actions
  • NWP 33 – Temporary Construction, Access, and Dewatering
  • NWP 34 – Cranberry Production Activities
  • NWP 35 – Maintenance Dredging of Existing Basins
  • NWP 36 – Boat Ramps
  • NWP 37 – Emergency Watershed Protection and Rehabilitation
  • NWP 38 – Cleanup of Hazardous and Toxic Waste
  • NWP 41 – Reshaping Existing Drainage Ditches
  • NWP 45 – Repair of Uplands Damaged by Discrete Events
  • NWP 46 – Discharges in Ditches
  • NWP 49 – Coal Remining Activities
  • NWP 53 – Removal of Low-Head Dams
  • NWP 54 – Living Shorelines
  • NWP 59 – Water Reclamation and Reuse Facilities

The December 27, 2021, Federal Register notice is available for viewing at federalregister.gov/documents/2021/12/27/2021-27441/reissuance-and-modification-of-nationwide-permits. As an alternative, interested parties can access the all previous and current NWP final rules and related documents at usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/.

It should be noted that 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 12 existing nationwide permits (NWPs) and 4 new NWPs, as well as the reissuance of NWP general conditions and definitions with some modifications. These 16 NWPs went into effect on March 15, 2021, and will expire on March 14, 2026:

  • NWP 12 – Oil or Natural Gas Pipeline Activities
  • NWP 21 – Surface Coal Mining Activities
  • NWP 29 – 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
  • NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
  • NWP 55 – Seaweed Mariculture Activities
  • NWP 56 – Finfish Mariculture Activities
  • NWP 57 – Electric Utility Line and Telecommunications Activities
  • NWP 58 – Utility Line Activities for Water and Other Substances

The January 13, 2021, Federal Register notice is available for viewing at federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits. The regional conditions for these 16 NWPs remain in effect and can be found at spa.usace.army.mil/reg/nwp.

In accordance with the U.S. Environmental Protection Agency’s (EPA’s) current water quality certification (WQC) regulations at 40 CFR Part 121, the Albuquerque District has reviewed Clean Water Act Section (CWA) 401 WQC decisions received from certifying authorities. As lead district in Colorado, the Albuquerque District has determined all accepted granted and denied WQC decisions in Colorado satisfied the requirements set forth in 40 CFR 121.7. For a list of WQC decisions in Colorado, please see the summary spreadsheet on our WQC webpage at spa.usace.army.mil/reg/wqc.

If a permittee engages in activities within the scope of an NWP, the permittee must also comply with any applicable regional conditions. In the State of Colorado, the following regional conditions apply to all NWPs:

Regional Conditions Applicable to All Nationwide Permits within the State of Colorado

1. Construction of Diversions and Intakes. The permittee must submit a pre-construction notification (PCN) to the District Engineer in accordance with general condition 32 prior to commencing any activity that involves the construction of new water diversions and intakes. This regional condition does not apply to maintenance activities covered by Nationwide Permit (NWP) 3.

2. Open Trenching in Perennial Streams. The permittee must submit a PCN to the District Engineer in accordance with general condition 32 prior to commencing any activity that involves open trenching in perennial streams.

3. Peatlands. All NWPs, with the exception of 3, 5, 6, 20, 27, 32, 37, and 38, are revoked for the discharge or dredged or fill material in peatlands. For NWPs 3, 5, 6, 20, 27, 32, 37, and 38, the permittee must submit a PCN to the District Engineer in accordance with general condition 32 prior to commencing work in peatlands. The term peatland includes fens and bogs. For the purposes of this regional condition, a peatland is defined as a wetland with organic soil that is classified as a histosol in the Natural Resources Conservation Service (NRCS) guidance document entitled Field Indicators of Hydric Soils in the United States (Version 8.0, 2016). A copy of the document can be obtained from the NRCS at nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_053171.pdf.

4. Stream Stabilization. The permittee must submit a PCN to the District Engineer in accordance with general condition 32 prior to commencing any stream stabilization activity that utilizes non-native material. The permittee must also submit a PCN to the District Engineer in accordance with general condition 32 prior to commencing any stream stabilization activity that exceeds the placement of ¼ cubic yard of material per linear foot on average below the plane of the ordinary high water mark for streams with an average width of less than 20 feet (measured at the plane of ordinary high water).

Non-native materials include clean brick, broken concrete, cinder block, slab material, wire mesh, such as gabion baskets, grout, and sheet piling. The use of Regional Conditions to the 2021 Nationwide Permits in the State of Colorado broken concrete with exposed rebar and tires (loose or formed into bales), and other materials listed under general condition 3 is prohibited in all waters of the United States. Rock, rip rap, and woody debris are considered native material.

For all stream stabilization activities involving non-native material, permittees must demonstrate that alternative engineering methods utilizing native materials are not practicable (with respect to cost, existing technology, and logistics), before the use of non-native material is allowed as suitable fill.

5. Gold Medal Waters. The permittee must submit a PCN to the District Engineer in accordance with general condition 32 prior to commencing all activities located in waters identified as “Gold Medal” by the Colorado Wildlife Commission. Upon receipt of a complete PCN, the U.S. Army Corps of Engineers (Corps) will initiate Agency Coordination with Colorado Parks and Wildlife (CPW) as outlined in the procedures under general condition 32(d) of the NWPs. Pre-application consultation with CPW is not required but highly recommended. If a pre-application consultation is conducted with CPW, providing written documentation of CPW’s response to the project may satisfy the coordination requirements resulting in quicker processing times. Please visit CPW’s website at cpw.state.co.us to determine the location of Gold Medal waters and the appropriate office for coordination.

6. Water Quality Certification. In accordance with 33 CFR 330.4(c), the conditions of Clean Water Act Section 401 water quality certifications are incorporated as conditions of the Section 404 NWPs. Water quality certifications are available at: spa.usace.army.mil/reg/wqc.

Regional Conditions Applicable to Specific Nationwide Permits within the State of Colorado

7. Nationwide Permit No. 27: Aquatic Habitat Restoration, Establishment, and Enhancement Activities. 

a. ​Net increase in aquatic resource functions and services. For projects requiring a PCN, the PCN must contain a description/assessment of the existing aquatic habitat conditions (i.e., baseline information), to be compared to proposed/post-construction conditions, and an explanation for why the project is needed (i.e., project purpose), including a description of how the project will improve aquatic habitat.

b. Fisheries enhancement. Agency Coordination with CPW is required for projects involving fisheries enhancement in perennial streams. Upon receipt of a complete PCN, the Corps will decide whether the project involves fisheries enhancement activities, regardless of whether the PCN explicitly identifies “fisheries enhancement” as the project purpose, and initiate Agency Coordination with CPW in accordance with the procedures set forth under general condition 32(d). Pre-application consultation with CPW, preferably on-site, is highly recommended for projects involving fisheries enhancement, and providing documentation of pre-application consultation with CPW and their response may satisfy the coordination requirements of this permit resulting in quicker processing times. Please visit CPW’s website at cpw.state.co.us to determine the appropriate office for coordination.

c. Ecological reference. This permit authorizes activities that are planned, designed, and implemented for the purpose of restoring, establishing, and enhancing aquatic habitat to resemble an ecological reference. To demonstrate compliance with this permit requirement, the PCN must identify the ecological reference or conceptual model used for project design. This permit does not authorize projects that involve other goals, such as waterborne recreation (e.g., kayak courses) and flood control.

To assist in Agency Coordination with CPW for projects involving fisheries enhancement, drawings must also include the following:

​(1) Plan view of all work clearly identifying types and locations of structures/impacts, along with dimensions, and approximate extents of aquatic resources within the project area, including wetlands and riffle-pool complexes. To aid in visual understanding, this plan can be overlaid on a recent aerial image of the project site. The plan should also include information such as the existing and proposed bank slopes, width-to-depth ratio of the channel, and sinuosity.

(2) ​Cross-sectional and longitudinal profile views to scale of the existing stream channel and the proposed channel modifications, including dimensions (length, width and height of the structures or work).

Failure to include the information required for Agency Coordination with CPW, when applicable, may result in delays and/or withdrawal of the PCN due to incompleteness.

d. As-built drawings. For projects requiring a PCN with a design-build or fisheries enhancement component, the permittee shall submit a complete set of as-built drawings to the Corps within 90 days following the completion of work.

e. Use of concrete and grout. The use of concrete/grouting is not allowed in perennial streams unless the Corps determines on a case-by-case basis that the impacts will result in minimal adverse effects to the aquatic resource.