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NBS projects often involve alterations to habitats, such as wetlands, that are protected at the federal, state, and sometimes local levels. Therefore, projects are subject to various regulatory processes. Because state and local regulations vary widely, it is not possible to provide comprehensive general information about regulatory and permitting requirements. This section reviews the federal regulations most relevant to NBS projects. Individual DOI bureaus and offices may have additional requirements for projects on their lands, which are not covered here.
- NEPA review: NBS projects planned and executed by DOI, including planning and implementation efforts such as BLM Range Management Plans and USFWS Comprehensive Conservation Plans, are subject to NEPA requirements. For projects that do not fall under a categorical exclusion (described later), NEPA requires an environmental assessment to determine if the proposed action is likely to have a significant environmental impact and, if so, an environmental impact statement with more detailed information on the environmental impact of the proposed action and any alternatives (43 CFR 46.300, 43 CFR Part 46 Subpart E). DOI supports the use of existing NEPA analyses where the data and assumptions used are relevant for the proposed action to reduce the NEPA workload (43 CFR 46.120). Proposed updates to NEPA implementation, released for public comment in July 2023, aim to make the NEPA process more efficient by encouraging programmatic environmental reviews that address multiple projects or categories of projects; enabling agencies to establish new categorical exclusions for certain contexts, geographies, and project types; and allowing agencies to use existing analyses in environmental reviews (88 FR 49924). Several NBS strategies—hazardous fuels reduction, including prescribed fire and mechanical methods, and post-fire rehabilitation activities such as tree planting and habitat restoration—are already categorically excluded from detailed NEPA analysis if they meet certain parameters related to the acreage treated, location, and potential for public health effects (43 CFR 46.210, 43 CFR 46.215).
- USFWS species permitting: For any project that may affect a listed (endangered) species or designated habitat, consultation with the USFWS is required. Informal consultation early in the project planning process is encouraged; USFWS field offices can provide technical assistance to identify listed species that may be present and what effect the project may have on those species. If required, a formal consultation later on will include a biological opinion analyzing the effects of the proposed project on the species or habitat and recommending measures to minimize those effects. Other wildlife relevant regulations to be aware of include the Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 661-666(e)) and the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712). The FWCA directs the USFWS to investigate federal actions that might affect wildlife resources, and the MBTA enforces international treaties that help ensure sustained populations of migratory bird species. NBS projects that may impact wildlife habitat and/or result in take of protected migratory birds will need to work with the USFWS to ensure they are in compliance with these regulations.
- USACE permitting: The USACE has authority under multiple statutes (Clean Water Act Section 404; Marine Protection, Research, and Sanctuaries Act; Rivers and Harbors Act of 1899) to regulate actions that are part of many NBS projects, including changes to dams or dikes in navigable waters; excavation, dredging, or disposal in navigable waters; any actions that modify the condition, course, or location of a navigable waterway; and discharges of dredged or fill material into waterways (33 CFR Part 320). Depending on the specific project and location, an individual permit may be required, or there may be an applicable general permit that authorizes the activity as long as certain conditions are met. General permits are intended to provide a quicker, more streamlined approval process and may be applicable nationally or only in certain regions or states (33 CFR Part 330). There are currently two nationwide permits most relevant to NBS projects: the nationwide permit for living shorelines, which authorizes living shorelines up to 500 ft in length (this general permit is currently not in effect in the New England USACE district) (Nationwide Permit 54), and the nationwide permit for aquatic habitat restoration, enhancement, and establishment, which authorizes a variety of restoration activities in aquatic habitats that increase ecosystem function, among other requirements (Nationwide Permit 27).
- NOAA coastal and marine regulations: There are protections in place for coastal and marine habitats and species that may require more permitting and review for projects in those areas. The Magnuson-Stevens Fishery Conservation and Management Act protects areas designated as essential fish habitat and requires federal agencies to consult with NOAA Fisheries to avoid, reduce, or compensate for any adverse effects to these habitats. Projects that may impact marine mammals, protected under the Marine Mammal Protection Act, should also consult with NOAA Fisheries about an incidental take authorization. NOAA Fisheries has jurisdiction over listed marine and anadromous species, so projects that may impact threatened or endangered marine species are also subject to ESA consultations. In coastal areas, the Coastal Zone Management Act has been used to establish coastal management programs that act as a permitting and regulatory framework that can help encourage coastal habitat restoration and other similar nature-based solutions (Karasik et al. 2022).
- FEMA floodplain standards: Any project built in a floodplain must obtain a development permit, and projects in the regulatory floodway must go through an encroachment review to ensure they do not increase the flood hazard to downstream properties or communities. These standards are required by FEMA as part of the National Flood Insurance Program, but are implemented by local governments (FEMA 2005).
- Additional regulations for projects with specific potential impacts:
- For any project located near a historic property, the National Historic Preservation Act of 1966 (NHPA) requires that federal agencies identify and assess the effects their actions may have on historic properties (as defined in the NHPA). This involves consultation with the State Historic Preservation Officer and/or Tribal Historic Preservation Officer (as well as local governments and other interested stakeholders) to identify properties potentially affected and develop alternatives to minimize, mitigate, or avoid these effects.
- For any project that will discharge pollutants from a point source, such as constructed wetlands that treat wastewater, a National Pollutant Discharge Elimination System (NPDES) permit is required. Construction activities that disturb more than an acre of land may also be required to obtain an NPDES permit for stormwater discharge. There is a Construction General Permit available for states where the EPA is the permitting authority; many states administer their own NPDES permitting programs and may have additional regulatory conditions.
- For projects implemented by non-DOI partners on DOI lands, special use permits from the relevant DOI bureau may be required—for example, National Park Service special use permits or USFWS special use permits. For any project that might impact a river in the Wild and Scenic Rivers System, the Wild and Scenic Rivers Act needs to be considered. This Act requires the protection and enhancement of water quality and other outstanding remarkable values of the protected river.
- For any project that might impact a designated wilderness area, the protections of the Wilderness Act need to be considered.
- For any project that may impact archaeological resources, the protections of the Archaeological Resources Protection Act need to be considered.