AMERICAN FISHERIES SOCIETY
AMERICAN SPORTFISHING ASSOCIATION
BIG HOLE WATERSHED COMMITTEE
CALIFORNIA TROUT
ENVIRONMENTAL POLICY INNOVATION CENTER
IZAAK WALTON LEAGUE OF AMERICAN
MONTANA TROUT UNLIMITED
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 ‘NWP A’ Rule for Fish Passage
Dear Ms. McCafferty:
Write in support of proposed, new ‘NWP A’ for fish passage. The under-signed restoration professionals and conservation organizations support the Army Corps of Engineers’ (ACOE’s or Corps’) proposed rule regarding Nationwide Permit A (NWP A), Activities to Improve Passage of Fish and Other Aquatic Organisms. 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). The 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.
‘NWP A’ complements the changes proposed to NWP27. Among the Corps’ 59 existing nationwide permits, NWP27 is unique in that it is tailored to voluntary, aquatic restoration activities. 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.
To provide guidance for some of these voluntary aquatic ecosystem restoration project types incorporating manufactured elements such as irrigation headgates and fish screens, the Corps is proposing a new, additional nationwide permit specific to fish passage, ‘NWP A,’ discussed at 90 Fed. Reg. 26123-125. We believe that the approach the Corps has taken to cover projects based on their improvement of fish passage under ‘NWP A’ appropriately groups projects that are “similar in nature.” We support the Corps’ proposal of “NWP A” for fish passage as a positive complement to the Corps’ work to improve NWP27.
‘NWP A’ complements NWP14 for Culvert Replacements. We also support the Corps reissuing NWP14 in addition to proposing ‘NWP A’ for fish passage enhancement. NWP14, Linear Transportation Projects, authorizes transportation activities, such as roads and railways, crossing streams and other waters of the United States. See, 90 Fed. Reg. at 26143. NWP14 is often used for road culvert replacements. NWP 14 is reissued without change from its 2021 reauthorization. Compare, 86 Fed. Reg. 73522 at 73574-575 (Dec. 27, 2021). NWP14 authorizes a narrower range of activities than proposed ‘NWP A’ because NWP14 activities must be related to transportation infrastructure, whereas proposed ‘NWP A’ covers upgrades to irrigation infrastructure with a conservation benefit, for example. We support both NWP14 and ‘NWP A’ for covering different types of activities, even if they have a similar conservation outcome of enhancing fish passage.
DETAILED COMMENTS ON PROPOSED ‘NWP A’ RULE TEXT
- Expansive List of Eligible Project Types. We support the proposed text of ‘NWP A’ that authorizes “fill material into waters of the United States and structures and work in navigable waters of the United States for activities that restore or enhance the ability of fish and other aquatic organisms to move through aquatic ecosystems.” 90 Fed. Reg. at 26156. Impairments to fish passage are typically the result of human alterations to aquatic ecosystems for irrigation
dams and diversions, road crossings, or other infrastructure or activities, such as mining. For this reason we support the expansive list of examples of activities qualifying for ‘NWP A’ that acknowledge the human-altered context and environment for improving fish passage, from construction of fish bypass channels around existing in-stream structures, to installation of fish screens, to modification of dams or weirs to enhance fish passage. Id.
Additions to the list of example activities could include: removal of mine tailings from a stream, creating a seasonal floodway, fish lifts, fish by-pass pipes, or the addition of behavioral guidance devices (bubble curtains, sound, or lights). We also support the explicit addition of allowing fish passage monitoring facilities such as construction of fish viewing facilities, acoustic or video counting facilities, or acoustic tag detectors. For some fish passage projects, for example, monitoring is important for addressing the potential for increased predation of juvenile fish where they may concentrate at the fish passage facility. Monitoring allows for adaptive management of the fish passage facility to maximize its conservation benefits.
- Support for No Net Gain Calculation. Important to the Corps’ implementation of ‘NWP A’ is its one-acre upper limit of disturbance to streams or other aquatic habitats. See, 90 Fed. Reg at 26124. ‘NWP A’ does not require a
complex “net” change calculation by the Corps to analyze and quantify the increase in stream function and services from altering the existing infrastructure that is causing the impairment to fish passage. Such a “net change” calculation would increase the cost of compliance and preparation of application materials, in addition to demanding more staff time and training for Army Corps review, creating its own barrier to aquatic restoration projects. For these reasons,
we support the one-acre upper limit under ‘NWP A’ for adversely affecting waters of the United States through fish passage enhancement activities.
- Support for PCN for Stream Losses Greater Than 1/10th of an Acre. The Corps’ proposed ‘NWP A’ requires a Preconstruction Notice (PCN) and permit application if the anticipated area of adversely affected stream or other water resources is greater than 1/10th of an acre. 90 Fed. Reg. at 26124, 26157. We support this choice of a limit for adverse impacts to waters of the United States to trigger the PCN and permit application review process. The 1/10th of an acre is aligned with other nationwide permits; importantly this is the same threshold for a PCN required under NWP14 typically authorizing culvert replacements. See, 90 Fed. Reg. 26143. As under NWP14, this 1/10th of an acre limit provides more Corps oversight of larger projects while also streamlining the permit process for smaller projects. For these reasons, we support the requirement for a PCN with stream losses anticipated to be greater than 1/10th of an acre.
CONCLUSION
We appreciate the Army Corps acting proactively to address some of the changes to its permitting process under NWP27 and propose ‘NWP A’ for aquatic restoration in highly human-altered contexts. For the reasons outlined above, we support the proposed “NWP A” to facilitate review and permitting of activities undertaken to enhance fish passage. Particularly in the context of irrigation dams and diversions, proposed ‘NWP A’ will no doubt meaningfully facilitate restoration activities to reconnect and restore aquatic habitats and ecosystems.
Yours sincerely,
AMERICAN FISHERIES SOCIETY
AMERICAN SPORTFISHING ASSOCIATION
BIG HOLE WATERSHED COMMITTEE
CALIFORNIA TROUT
ENVIRONMENTAL POLICY INNOVATION CENTER
IZAAK WALTON LEAGUE OF AMERICAN
MONTANA TROUT UNLIMITED
THEODORE ROOSELVELT CONSERVATION PARTNERSHIP
TROUT UNLIMITED
WILD SALMON CENTER
