AMERICAN FISHERIES SOCIETY
AMERICAN SPORTFISHING ASSOCIATION
BIG HOLE WATERSHED COMMITTEE
CALIFORNIA TROUT
IZAAK WALTON LEAGUE OF AMERICAN
MONTANA TROUT UNLIMITED
NATIONAL WILDLIFE FEDERATION
THEODORE ROOSELVELT CONSERVATION PARTNERSHIP
TROUT UNLIMITED
WILD SALMON CENTER
July 17, 2025
Ms. Katherine McCafferty
U.S. Army Corps of Engineers
Attn: CECW-CO-R
441 G Street, NW
Washington, DC 20314-1000
Submitted electronically: Docket # COE-2025-0002, 2026nationwidepermits@usace.army.mil
Re: Comments in Support of Proposed NWP27 Rule for Voluntary Aquatic Restoration
Dear Ms. McCafferty:
The undersigned restoration professionals and conservation organizations support the Army Corps of Engineers’ (ACOE’s or Corps’) proposed rule regarding Nationwide Permit 27 (NWP27), Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities. Below we outline the proposed changes to NWP27 and the reasons for our support.
INTRODUCTION
The ACOE published its proposed rule, Proposal to Reissue and Modify Nationwide Permits, 90 Fed. Reg. 26100-26167 (June 18, 2025), under its Section 404 Clean Water Act authority to issue rules for categories of activities that are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). Nationwide permits expire after five years. 33 U.S.C. § 1344(e)(2). The current nationwide permits are set to expire on March 14, 2026. See, 90 Fed. Reg. at 26102.
NWP27 is unique among nationwide permits. Among the Corps’ 59 existing nationwide permits, NWP27 is unique in that it is tailored to voluntary, aquatic restoration activities as the allowable category of activities that are “similar in nature.” 33 U.S.C. § 1344(e)(1). As an eligibility threshold, voluntary aquatic ecosystem restoration activities are eligible under NWP27 if they are anticipated “to produce net increases in aquatic ecosystem functions and services.” 90 Fed. Reg. at 26114.
NWP27’s review of voluntary aquatic restoration activities requires a different analysis. NWP27 covers a fundamentally different project type than nearly all other nationwide permits. Rather than the Corps analyzing a proposed project for the scope of its impacts to wetlands or streams at the time of construction, as is typical under a nationwide permit, under NWP27, the Corps makes a different determination: is this voluntary project likely to produce a net increase in aquatic ecosystem functions and services over time? In other words, does the proposed project move the project area from a degraded state to a more restored state? The changes proposed to NWP27 focus the Corps’ analysis on this key element while also streamlining the review process and lowering the barriers to voluntary restoration activities.
We support the proposed NWP27 rule modifications. They accomplish three important objectives:
- Improve the Corps’ NWP27 Permit Review Process—Preconstruction notices (PCNs) and permit applications are no longer typically required. Instead, project proponents will provide notice to the Corps through a summary report and project description, demonstrating project eligibility for NWP27, with a 30-day review period by the Corps. A PCN and permit application review is only triggered when a General Condition circumstance is present, or if the Division Engineer has issued an applicable regional condition. Typical General Condition circumstances might include if the activity might affect a species listed (or proposed for listing) or designated (or proposed for designation) critical habitat under the Endangered Species Act (General Condition 18), or if there is a historic structure or Tribal cultural artifact that may be affected (General Conditions 20-21).
- Recognize that the Purpose of NWP27 Projects is to move the Project Area from a Degraded State to a More Restored State. The wide range of activities authorized under NWP27 must resemble an ecological reference, without engineered construction or manufactured elements (such as pumps, concrete, etc.). The proposed rule simplifies and shortens the list of prohibited activities, recognizing that changes in the location and extent of aquatic habitat types are anticipated when moving the project area from a degraded to a more restored state. The proposed rule also clarifies that NWP27 activities are exempt from the requirements of compensatory mitigation, which is needed for projects that degrade aquatic resources, in order to replace lost functions.
Below, in our detailed comments, we make two recommendations to add illustrative text to support implementation. First, we recommend retaining the existing sentence in the NWP27 text that explains that changes in wetland species and distribution is to be anticipated when wetland hydrology is restored. Second, we recommend citing the Corps’ regulatory definition of restoration.
- Reduce Compliance Costs—No wetland delineation is required for proposed NWP27 projects. This is true whether the project requires a PCN and permit application or a simple notice and project description submitted to the ACOE. The removal of the wetland delineation requirement enables project proponents to dedicate more resources to voluntary aquatic restoration projects. In its place, the new, required report elements are closely aligned with typical project planning and design work and do not substantially increase project costs. The new reporting requirements also provide the Corps with more useful information in determining the project’s anticipated “net increases in aquatic ecosystem functions and services,” the minimum threshold for NWP27 project eligibility. See, 90 Fed. Reg. at 26114.
No requested changes to the proposed text of NWP27. The proposed rule for NWP27 is well grounded in the Corps’ review of restoration practices, approaches, and supporting science. See, 90 Fed. Reg. at 26114-26121. We make no requested changes to the proposed text of the new NWP27 proposed rule found at 90 Fed. Reg. at 26145-26146. Rather, as we describe in more detail in Section 2 below, we propose two suggested additions to the NWP27 text, and clarification within the NWP27 preamble, to help illustrate eligible and allowable projects and assist in NWP27 implementation.
DETAILED COMMENTS IN SUPPORT OF PROPOSED NWP27 RULE
- Improve the Corps’ NWP27 Permit Review Process.
One of the biggest changes to NWP27 in the proposed rule is its change to when a Preconstruction Notice (PCN) and permit application are required. Currently, a PCN and permit application are generally required, and the Corps must review all these applications and grant, deny, or condition the NWP27 permit. The current exception to this is when one of the federal agencies listed in the NWP27 rule is undertaking the proposed project as part of a binding stream or wetland restoration agreement with the landowner. The proposed NWP27 rule reverses this practice. The new requirement of a report and project description provided 30-days prior to any project construction provides the Corps with the information and ecological context it needs to determine project eligibility for NWP27. In addition to this change, the Corps’ review process is changed in several ways that we support:
- BLM Added. We support the addition of the Bureau of Land Management (BLM) to the list of federal agencies in NWP27. See, 90 Fed. Reg. at 26119, and at 26145.
- Report and 30-Days’ Notice Required. We support the proposed NWP27 rule’s process change that a 30-days notice to the Corps of a proposed project is required through submission of a simple report format. 90 Fed. Reg. at 26145. The discussion of the required report elements is straightforward and clear. See 90 Fed. Reg. at 26119-26120. The report requires the project proponent’s contact information, project location, description, and a map of the area’s baseline condition and habitat types. Additionally, it requires a map of the project elements and a description of how the project will enhance aquatic ecosystem functions and services in the project area. As the Corps notes, this report and notice requirement serves as an important guardrail against misuse of the NWP27, providing a streamlined pathway for the Corps to determine whether the proposed project is eligible for NWP27 or not. 90 Fed. Reg. at 26117.
- PCN and Permit Application Required in a General Condition Circumstance. We support the proposed rule’s reliance on triggering General Conditions for when a PCN and permit application are required. 90 Fed. Reg. at 26146. In the context of NWP27 projects, these General Conditions might be: a) if any species listed under the Endangered Species Act (including proposed listed species) or designated critical habitat (including proposed critical habitat) might be affected or is in the vicinity (General Condition 18, 90 Fed. Reg. at 26158); b) if there is a historic structure or cultural artifact that may be affected (General Conditions 20-21, 90 Fed. Reg. at 26159); or, c) if the Division Engineer has issued an applicable regional condition. See, e.g., 90 Fed. Reg. at 26103 (discussion of Division Engineer authority to modify nationwide permits based on regional, geographic differences). We also support the clarification in Note 2 to the proposed NWP27 text that the above-described report substitutes for a wetland delineation when a PCN is triggered by a General Condition. 90 Fed. Reg. at 26146.
- Recognize the Purpose of NWP27 Projects is to Move the Project Area from a Degraded State to a More Restored State. Another significant change in the proposed NWP27 rule is the recognition and description of how, unlike projects under other nationwide permits, the voluntary aquatic restoration projects do not cause a loss of wetlands or stream functions, but rather move the project area from a degraded state to a more restored state. The proposed rule for NWP27 is well-grounded in the Corps’ review of restoration practices, approaches, and supporting science, which describes the key eligibility threshold for NWP27 projects that aim to increase aquatic ecosystem functions and services in the project area. See, 90 Fed. Reg. at 26114-26121.
We support the simplifications of the proposed NWP27 rule text that also focus the Corps’ review on whether the proposed project shifts the project area from a degraded state to a more restored condition. We believe these changes will help prevent some of the permitting barriers that restoration projects have encountered under NWP27 in the past, such as restricting changes from one type of aquatic or wetland habitat in a specific location to another, or requiring compensatory mitigation for those changes, even when there are significant increases in functional, restored aquatic or wetland habitats within the project area. Additionally, we support the simplification of the proposed NWP27 rule text to make the project eligibility determination easier for the Corps. We support the proposed changes:
- Ecological Reference Required. The proposed NWP27 text stipulates that the wide range of activities authorized under NWP27 must resemble an “ecological reference.” 90 Fed. Reg. at 26145. The Corps specifically explains that the ecological reference requirement in NWP27 “does not prevent the use of BDAs [beaver dam analogues] or PALS [post-assisted log structures] to conduct these process-based river and stream corridor restoration activities because those structures mimic beaver dams and clusters of large wood that may be found in the ecological references.” 90 Fed. Reg. at 26118.
We recognize, of course, that voluntary restoration projects with some manufactured or constructed elements can and do meet the threshold requirement for NWP27 project eligibility, which is a net increase in aquatic ecosystem functions and services and that the project outcome resembles an ecological reference. These projects could include, for example, wetland restoration in highly human-altered systems with levees, water management structures or pumps, or estuary restoration incorporating levee-like elements. These project types do meet the ecological reference requirement for meeting NWP27 eligibility because they move the project area from a degraded state to a more restored state, and the restored state increases the area, amount, or otherwise increases aquatic ecosystem functions and services. As elaborated on, below, these project types meet the definition of operating within cultural ecosystems “which are ecosystems that have developed under the joint influence of natural processes and human management activities.” 90 Fed. Reg. at 26145.
In addition, to capture some of these project types, the Corps is proposing a new, additional nationwide permit specific to fish passage, “NWP A,” discussed at 90 Fed. Reg. 26123-125.
This approach more appropriately groups fish passage projects, which are similar in nature. We support the Corps to consider and propose, as it is doing with the “NWP A” for fish passage, other nationwide permits (or new general regional permits) for voluntary restoration activities in highly human-altered areas that necessarily depend on manufactured or constructed elements such as pumps or levees, or for other activities that are “similar in nature.” While such projects should be covered by the proposed NWP27 under “cultural ecosystems,” as an alternative, a nationwide permit encompassing voluntary restoration projects that depend on manufactured or large, constructed elements may provide for simplified implementation and proposed project review.
- Ecological Reference May Include Indigenous Knowledge and Human-Managed Systems. The proposed text of NWP27 states that: “Ecological references include cultural ecosystems, which are ecosystems that have developed under the joint influence of natural processes and human management activities (e.g., fire stewardship for vegetation management).” 90 Fed. Reg. at 26145. The NWP27 proposed text further explains that an ecological reference may include indigenous knowledge of the target aquatic ecosystem type or riparian area. Id. The Corps’ rationale supporting these additions to the proposed text of NWP27 explains that examples of stewardship activities conducted by indigenous and local societies, in addition to the use of fire, are soil management, cultivating, and harvesting plant species of cultural importance. 90 Fed. Reg. at 26116. We support the Corps’ recognition that people have managed and altered ecosystems for thousands of years, and the Corps’ explanation that human-influenced ecological references are part of realistic and achievable objectives for aquatic ecosystem restoration, enhancement, and establishment activities. See, 90 Fed. Reg. at 26115-116.
In addition, the “cultural ecosystems” that are defined in the proposed text of NWP27 would include wetland, estuary, and other aquatic restoration in human-managed systems. Voluntary aquatic restoration, particularly large-scale wetland restoration, in these cultural ecosystems can include manufactured or constructed elements. We recommend that in the Corps’ implementation of the proposed NWP27, the Corps take a broad reading of qualifying restoration in “cultural ecosystems,” especially those in highly altered environments. The statement in the Corps’ rationale introducing the proposed changes to NWP27 states that “NWP27 does not authorize the construction, maintenance, or expansion of nature-based solutions that consist of a combination of natural ecosystems and artificial, engineered features because those activities would not resemble ecological references.” 90 Fed. Reg. at 26119. We recommend that in implementation, the Corps take a broad view of the overall ecological reference resemblance of the proposed voluntary restoration project outcome, and not disqualify individual project elements that are in service of restoring an increase in aquatic functions and services.
- Removes Paragraph on Prohibiting Habitat Conversions. The proposed, simplified text of NWP27 removes the paragraph broadly prohibiting habitat conversions. See, 90 Fed. Reg. at 26118. We support this change because it acknowledges the dynamic nature of aquatic systems and the goal of transitioning project areas from a degraded state to a more restored one. This deletion, however, also includes the current sentence that explains that changes in wetland plant communities that occur when wetland hydrology is more fully restored is not a prohibited habitat conversion. Id. While this sentence has provided helpful direction in the past, in the context of all the proposed changes to NWP27, we agree it is no longer strictly necessary. We suggest, however, that it would be helpful to retain this sentence as an example of a proposed project’s anticipated outcome of resembling an ecological reference.
- Recommendation: Add Reference to Corps’ Definition of Restoration. As noted above, we support the Corps’ explanation and rationale for removing the existing paragraph broadly prohibiting habitat conversions. See, 90 Fed. Reg. at 26118. In addition to our suggestion above, to retain the existing explanatory sentence regarding allowable changes in wetland plant communities when wetland hydrology is more fully restored, we also suggest adding a reference to the Corps’ definition of restoration, codified at 33 C.F.R. § 332.2. This regulation defines restoration as “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.” 33 C.F.R. § 332.2 The Corps notes that this regulatory definition is in Section F of the proposed nationwide permit rule, and has been since 2007. See, 90 Fed. Reg. at 26118. We recommend also referencing this regulatory definition in the proposed text of NWP27 by adding this sentence: “Eligible NWP27 projects may include changes in existing conditions within the project area in service of moving the proposed project area to a more restored state, consistent with the regulatory definition of ‘restoration’ codified at 33 C.F.R. § 332.2.” We believe it would be helpful to the implementation of NWP27 to add this sentence.
- Only Native Plant Species. The proposed NWP27 text states explicitly: “Only native plant species should be planted at the site.” 90 Fed. Reg. at 26145. We support this directive.
- Explicitly Prohibits Three Types of Projects. Rather than the current rule’s presumption against changing habitat types, the proposed NWP27 text instead expressly prohibits a) dam removal activities; b) stream channelization activities; and c) conversion of tidal wetlands to “open water impoundments and other aquatic uses.” 90 Fed. Reg. at 26145. While conversion of tidal wetlands to “open water impoundments” is prohibited, the text of proposed NWP27 explicitly allows the “restoration and enhancement of tidal streams, tidal wetlands, and tidal open waters.” 90 Fed. Reg. at 26145. These allowable tidal restoration activities share a common feature: they have an ecological reference.
The Corps explains that, as a class of activity, dam removal may not meet the statutory requirement of causing no more than a “minimal adverse environmental effect.” 33 U.S.C. § 1344(e)(1). The Corps recognizes that the removal of water storage dams may require a standardized individual permit due to the release of stored sediment behind the dam, for example. See, 90 Fed. Reg. at 26124. This does not preclude, however, the authorization of similar types of dam removal under a separate nationwide permit. For example, NWP53 authorizes the removal of low-head dams. NWP53 was first issued in 2017 and reissued in 2021. See, 90 Fed. Reg. at 26118. Similarly, the Corps is proposing a new nationwide permit for fish passage, “NWP A,” that addresses restoration activities with some instream irrigation dams. See, 90 Fed. Reg. at 26119, 26156-157. Proposed NWP A includes as allowable activities, for example, “. . . the modification of existing instream structures, such as dams or weirs, to improve the ability of fish and other aquatic organisms to move past those structures.” 90 Fed. Reg. at 26156 (emphasis added).
- Removes List of NWP27 Example Projects. The proposed NWP27 rule removes the paragraph in the existing rule that lists examples of allowed restoration projects. The Corps explains that some regulators and applicants had interpreted the list as an exclusive list. 90 Fed. Reg. at 26116. The Corps’ discussion describes the ongoing evolution of ecological restoration techniques and methods. It notes that removing the list of allowed project types should encourage innovation within the definition of aquatic ecosystem enhancements over time, a positive change. See, 90 Fed. Reg. at 26116. Given this rationale in the public notice, expanding rather than narrowing the applicability of NWP27 is a positive change.
- Compensatory Mitigation Clarification. We support the explicit statement in the text of proposed NWP27: “Compensatory mitigation is not required for activities authorized by this NWP because these activities must result in net increases in aquatic ecosystem functions and services.” 90 Fed. Reg. at 26145.
- Changes Title of NWP27 to Aquatic Ecosystems. The proposed NWP27 rule changes the title from “aquatic habitats” to “aquatic ecosystems.” See, 90 Fed. Reg. at 26115. This is a positive change and reflects the heart of NWP 27: to encourage restoration of ecosystem functions resulting in net gains.
- Reduce Compliance Costs. No wetland delineation is required under the proposed NWP27 rule. This is a positive and welcome change. No wetland delineation is required, whether the project requires a PCN or a simple notice report and project description submitted to the ACOE. The removal of the wetland delineation requirement allows project proponents to dedicate more resources to voluntary aquatic restoration projects. As described above in Section 1 of these comments, in place of the wetland delineation, the new, required report elements are closely aligned with typical project planning and design work and do not substantially increase project costs, while also providing the Corps with more helpful information in determining the project’s anticipated “net increases in aquatic ecosystem functions and services.”
- Clarification in Note 2: no wetland delineation required. We support the clarification in Note 2 to the proposed NWP27 text that the above-described report substitutes for a wetland delineation when a General Condition triggers a PCN and permit application. 90 Fed. Reg. at 26146.
- No Quantitative Limits on Project Size. The Corps explains in its rationale supporting the proposed NWP27 rule that “NWP27 does not have any quantitative limits, such as acreage limits.” 90 Fed. Reg. at 26120. The Corps also explains that the lack of strict quantitative limits or triggers under NWP27 means that “determining precise locations of wetland boundaries, ordinary high water marks, high tide lines . . . or other boundaries” is not necessary. 90 Fed. Reg. at 26120. We support the Corps’ description and rationale of why ‘Stage 0’ restoration is an eligible NWP27 restoration activity. See, 90 Fed. Reg. at 26117-118. We support the Corps’ explanation and rationale in support of the new report elements substituting for the wetland delineation. These changes increase the ability to move restoration projects through the 404 Permit review process much faster and at a lower cost, directing more voluntary restoration dollars to on-the-ground results.
CONCLUSION
We support the proposed changes to NWP27 because they streamline the Corps’ permit review process, focus the Corps’ review on whether the proposed project advances the condition of the project area from a degraded state to a more restored state, and remove barriers to voluntary aquatic restoration. We commend the Corps for its thoughtful work in proposing its revisions to NWP27.
Sincerely,
AMERICAN FISHERIES SOCIETY
AMERICAN SPORTFISHING ASSOCIATION
BIG HOLE WATERSHED COMMITTEE
CALIFORNIA TROUT
IZAAK WALTON LEAGUE OF AMERICAN
MONTANA TROUT UNLIMITED
NATIONAL WILDLIFE FEDERATION
THEODORE ROOSELVELT CONSERVATION PARTNERSHIP
TROUT UNLIMITED
WILD SALMON CENTER
