Subject: On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published the notice in the Federal Register announcing the reissuance of 12 existing nationwide permits (NWPs), general conditions, and definitions with some modifications. The Corps also issued four new NWPs, one new general condition, and five new definitions. The 2021 NWPs will go into effect on March 15, 2021 and will expire on March 15, 2026.
The January 13, 2021, Federal Register notice is available for viewing at:
https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits
As an alternative, interested parties can access the January 13, 2021, final rule and
related documents at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/
The remaining 40 NWPs and one additional new NWP that were included in the proposed rule published on September 15, 2020 are not being issued at this time. These 40 NWPs, including their 2017 regional conditions, will remain in effect until their March 18, 2022 expiration date.
The South Pacific Division has approved the 2021 NWP regional conditions for California, Nevada, and Utah. The final 2021 NWP regional conditions for Sacramento District consists of two lists:
1. Final 2021 Nationwide Permit (NWP) Regional Conditions for the State of California (attachment 1): This list contains five regional conditions and two 401 water quality certification conditions for projects within the Sacramento District boundaries in California.
2. Final 2021 Nationwide Permit (NWP) Regional Conditions for the States of Nevada and Utah (attachment 2): This list contains five regional conditions for projects within the Sacramento District boundaries in Nevada and Utah, and two 401 water quality certification conditions for Nevada and twenty-one 401 water quality conditions for Utah.
The Final 2021 NWP (NWP) Regional Conditions for the State of California were developed by the Sacramento, Los Angeles, and San Francisco Districts. When combined with the terms and conditions of the NWPs, the final regional conditions were designed to ensure no more than minor impacts occur to waters of the U.S. The final 2021 NWP regional conditions for California, Nevada, and Utah will take effect on March 15, 2021, with the effective date of the NWPs. Final 2021 NWP regional conditions for activities within the Sacramento District boundaries of the State of Colorado, including Navajo Nation land, have been published by the Albuquerque District here: https://www.spa.usace.army.mil/Missions/Regulatory-Program-and-Permits/Public-Notices/Article/2523848/final-public-notice-the-final-colorado-regional-conditions-applicable-to-the-16/
Section 401 Water Quality Certifications (WQCs): The Sacramento District has received the following Section 401 WQCs for California, Nevada, and Utah:
1. California:
a. U.S. Environmental Protection Agency (USEPA), Region 9: On December 11, 2020, the USEPA, Region 9 conditionally granted certification for NWP 43, denied certification for NWPs 12, 29, 39, 40, 42, 44, 51, 57, and 58, and expressly waived certification for NWPs 21, 48, 50, and 52 for activities on applicable tribal land within USEPAs Region 9 coverage area in California. Based on the information provided, the denial meets the requirements of 40 CFR 121.7(e)(2) and the conditions meet the requirements of 40 CFR 121.7(d)(2). For NWP 43, 401 WQC is granted with conditions, and for NWPs 12, 29, 39, 40, 42, 44, 51, 57, and 58, individual 401 WQC, or waiver thereof, is required on applicable tribal land within USEPAs Region 9 coverage area in California.
b. California State Water Resources Control Board (SWRQB): On December 9, 2020, the SWRCB conditionally granted certification for NWPs 12, 57, and 58, and denied certification for NWPs 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, and 52. However, Finding 5 of the General Order does not comply with the requirements of Section 401 of the Clean Water Act or with 40 CFR Part 121. As a result, the certification is not valid. Individual 401 WQC, or waiver thereof, is required for all 2021 NWP activities on non-tribal land in California.
c. Kletsel Dehe Wintun Nation: On October 30, 2020, the Kletsel Dehe Wintun Nation denied 401 WQC for all NWPs. However, the tribe did not provide the information required in 40 CFR 121.7(e)(2). Thus, certification is waived. There is no requirement to obtain individual 401 certification for any 2021 NWP activity on Kletsel Dehe Wintun Nation reservation land in California.
2. Nevada:
a. U.S. Environmental Protection Agency (USEPA), Region 9: On December 11, 2020, the USEPA, Region 9 conditionally granted certification for NWP 43, denied certification for NWPs 12, 29, 39, 40, 42, 44, 51, 57, and 58, and expressly waived certification for NWPs 21, 48, 50, and 52 for activities on applicable tribal lands within USEPAs Region 9 coverage area in Nevada. Based on the information provided, the denial meets the requirements of 40 CFR 121.7(e)(2) and the conditions meet the requirements of 40 CFR 121.7(d)(2). For NWP 43, 401 WQC is granted with conditions, and for NWPs 12, 29, 39, 40, 42, 44, 51, 57, and 58, individual 401 WQC, or waiver thereof, is required on applicable tribal land within USEPAs Region 9 coverage area in Nevada.
b. Nevada Division of Environmental Protection (NDEP): On December 11, 2020, the NDEP conditionally granted certification for NWPs 12, 29, 39, 40, 42, 43, 44, 51, 52, 57, and 58, and expressly waived certification for NWPs 21, 48, and 50. NDEP did not deny certification for any NWPs. However, General Conditions 1, 3, 4, 18, and Special Condition 1 do not comply with the requirements of Section 401 of the Clean Water Act or with 40 CFR Part 121. As a result, the certification is not valid. Individual 401 WQC, or waiver thereof, is required for all 2021 NWP activities on non-tribal land in Nevada.
c. Pyramid Lake Paiute Tribe: On December 10, 2020, the Pyramid Lake Paiute tribe denied 401 WQC for all NWPs. However, the tribe did not provide the information required in 40 CFR 121.7(e)(2). Thus, certification is waived. There is no requirement to obtain individual 401 certification for any 2021 NWP activity on Pyramid Lake Paiute reservation land in Nevada.
3. Utah:
a. U.S. Environmental Protection Agency (USEPA), Region 8: On December 12, 2020, the USEPA, Region 8 denied 401 WQC for NWPs 12, 21, 29, 39, 40, 42, 43, 44, 50, 51, 52, 57, and 58, and expressly waived NWP 48 for activities on applicable tribal land within USEPAs Region 8 coverage area in Utah. USEPA Region 8 did not grant 401 WQC for any of the 16 NWPs. Based on the information provided, the denial meets the requirements of 40 CFR 121.7(e)(2). For NWPs 12, 21, 29, 39, 40, 42, 43, 44, 50, 51, 52, 57, and 58, individual 401 WQC, or waiver thereof, is required for activities on applicable tribal land within USEPAs Region 8 coverage area in Utah.
b. Utah Division of Water Quality, Department of Environmental Quality (UT DEQ): On December 8, 2020, UT DEQ conditionally granted certification for NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 57, and 58, and denied certification for any NWP activity involving “dam maintenance/rehabilitation or reservoir dewatering.” Based on the information provided, the denial meets the requirements of 40 CFR 121.7(e)(2) and the conditions meet the requirements of 40 CFR 121.7(d)(2). For NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 57, and 58, 401 WQC is granted with conditions, and for NWP activities involving dam maintenance/rehabilitation or reservoir dewatering, individual 401 WQC, or waiver thereof, is required on non-tribal land in Utah.
c. Ute Mountain Ute Tribe (UMUT): On December 14, 2020, the UMUT conditionally granted certification for NWPs 43 and 57, denied certification for NWPs 12, 21, 29, 39, 40, 42, 44, 50, 51, 52, and 58, and expressly waived certification for NWP 48. Based on the information provided, the denial meets the requirements of 40 CFR 121.7(e)(2) and the conditions meet the requirements of 40 CFR 121.7(d)(2). For NWPs 43 and 57, 401 WQC is granted with conditions, and for NWPs 12, 21, 29, 39, 40, 41, 44, 50, 51, 52, and 58, individual 401 WQC, or waiver thereof, is required on UMUT reservation land in Utah.
No responses were received from the Yerington Paiute Tribe of Nevada, Walker River Paiute Tribe, Shoshone-Paiute Tribes of the Duck Valley Reservation, or the Confederate Tribe of the Goshute Reservation within the reasonable period of time. Therefore, 401 certification is waived. There is no requirement to obtain individual 401 certification for any 2021 NWP activity within these certifying authorities’ areas of responsibility.
Pre-Construction Notification: In order to facilitate the information required for the submittal of a complete Pre-Construction Notification (PCN) as identified in NWP General Condition 32, the attached ENG Form 6082 (attachment 3) with instructions is provided.
Information on the 2021 NWPs, including attachments to this Public Notice, may be found on the Sacramento District’s website at: http://www.spk.usace.army.mil/Missions/Regulatory/Permitting/Nationwide-Permits/
If you have any questions, please contact Ms. Leah Fisher at our Special Projects Branch Office, Regulatory Division, U.S. Army Corps of Engineers, 1325 J Street, Room 1350, Sacramento, California 95814-2922, by email at Leah.M.Fisher@usace.army.mil, or telephone at (916) 557-6639.
Attachments:
Attachment 1 - Final 2021 NWP Regional Conditions for the State of California
Attachment 2 - Final 2021 NWP Regional Conditions for the States of Nevada and Utah
Attachment 3 - ENG Form 6082, OCT 2019