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Under the Corps' Regulatory Program, a public notice is the primary method for advising all interested parties of a proposed activity for which a permit is sought. Soliciting comments and information necessary to evaluate the probable impacts on the public interest. Public notices are also published to inform the public about new or proposed regulations, policies, guidance or permit procedures.

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SPK-2001-00147, Proposal to Reissue Regional General Permit (RGP) 1

Posted: 3/21/2017

Expiration date: 4/21/2017


Comments Period: March 21, 2017 – April 21, 2017

SUBJECT: The U.S. Army Corps of Engineers, Sacramento District, (Corps) is proposing to reissue Regional General Permit (RGP) 1 for activities that would cause no more than minimal adverse impacts to the aquatic environment within the Plan Area of the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP, or “Plan”), approved in December 2006. The proposed RGP would authorize placement of dredged or fill material into waters of the U.S. pursuant to Section 404 of the Clean Water Act. This notice is to inform interested parties of the proposed activity and to solicit comments.

PURPOSE: The purpose of RGP 1 is to implement an expedited review and decision-making procedure for activities covered under the HCP/NCCP that require a Department of the Army (DA) authorization, that are similar in nature and would have minimal individual and cumulative impacts on the aquatic environment.

AUTHORITY: RGP 1 is being evaluated under Section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States.

LOCATION: The area covered by RGP 1 is east Contra Costa County, including the cities of Clayton, Brentwood, Oakley, and Pittsburg, and specific areas of unincorporated Contra Costa County. It is geographically coincident with the HCP/NCCP Plan Area.

DESCRIPTION OF AUTHORIZED ACTITIVIES: This RGP authorizes specific categories of activities with minimal individual and cumulative impacts on the aquatic environment that meet the terms and conditions of the permit, within the Plan Area of the HCP/NCCP. Temporary structures, fills, and work necessary to construct an activity authorized by this RGP (e.g., cofferdams, access roads) are allowed, provided such work complies with the terms and conditions of this RGP inclusive of special conditions that the Corps may add. This RGP applies only to HCP/NCCP Covered Activities, as set forth in Section 2.3 of the HCP/NCCP (also see Definitions section). Any question as to whether a proposed activity is considered a Covered Activity under the HCP/NCCP shall be subject to confirmation by the East Contra Costa County Habitat Conservancy (Conservancy) (see Definitions section). The HCP/NCCP Covered Activities are divided among the following Activity categories:

1. Residential, commercial, industrial, institutional, and other urban developments and associated infrastructure inside the Urban Limit Line of Contra Costa County or inside the City Limits of the Cities of Brentwood, Clayton, Oakley and Pittsburg, including but not limited to roads, utilities, parks, storm water management facilities, and water supply and delivery facilities. (Activity-specific conditions: 1 through 4).

2. Recreation projects, including parks, picnic areas, staging areas, trails and park maintenance facilities. Applies only to the activities set forth in Sections 2.3.2 and 2.3.4 of the HCP/NCCP. (Activity-specific conditions: 1 through 4).

3. Flood control detention basins, reservoirs , channels, and related facilities. Applies only to the specific planned facilities set forth in Section 2.3.2 of the HCP/NCCP. (Activity-specific conditions: 1 through 4).

4. Transportation projects, including road construction and widening, bicycle trails, rail projects, bridges and safety-related projects. Applies only to the specific planned facilities set forth in Section 2.3.2 of the HCP/NCCP. (General conditions apply only).

5. Wetland and stream restoration, creation, enhancement and management. Applies only to activities set forth in Sections 2.3.2 and 2.3.4 of the HCP/NCCP. (Activity-specific conditions: 1, 2 and 4).

6. Utility projects, including electrical transmission projects, cellular communication projects and pipelines. Applies only to the activities set forth in Sections 2.3.2 and 2.3.4 of the HCP/NCCP. (Activity-specific condition 4).

7. Maintenance, repair, rehabilitation or replacement of any previously authorized (under the RGP or other Corps permit), currently serviceable, structure or fill. Applies only to the maintenance activities set forth in Sections 2.3.1 and 2.3.3 of the HCP/NCCP. (General conditions apply only).

This RGP contains 21 general conditions that would apply to all categories, and four Activity-specific conditions that would apply to specified categories. The RGP does not cover any activities in waters of the U.S. conducted in emergency situations.

ADDITIONAL INFORMATION:

Background. In accordance with Corps regulations at 33 CFR 322.2(f), RGPs are DA authorizations that are issued on a regional basis for a category or categories of activities when:

a. Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or

b. The general permit would result in avoiding unnecessary duplication of the regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal.

The Corps originally authorized RGP 1 on May 4, 2012. The RGP will expire on May 4, 2017. Information regarding the purpose for and use of RGP 1 is provided above. The proposed reissuance of RGP 1 would entail few minor clarification updates, and as currently drafted, no substantive modifications. During the first five years of its use, the Corps has verified approximately 15 projects/activities under RGP 1. Based on information known to-date, the use of proposed RGP 1 if reissued for 2017 – 2022 is anticipated to be similar to slightly higher relative to its use in 2012 – 2017.

Mitigation. Mitigation for impacts to waters of the U.S. would include the requirement for applicants to describe how the proposed activity has been designed to avoid and minimize adverse effects, both temporary and permanent, to waters of the U.S. Compensatory mitigation for unavoidable impacts to waters of the U.S. must be accomplished by conforming to the minimum mitigation ratios set by the HCP/NCCP, as summarized in the attached Table 1. Mitigation proposals are required to be consistent with the Federal mitigation rule (33 CFR Part 332). The preferred mechanism for providing compensatory mitigation is by acquiring mitigation bank credits or in-lieu fee (ILF) program credits from a Corps-approved bank or ILF program, respectively. However, if an appropriate number and type of mitigation bank or ILF credits are not available, permittee-responsible mitigation may be proposed. Pursuant to the Federal mitigation rule, the preference hierarchy for use of banks, ILF programs and permittee-responsible to fulfill compensatory mitigation requirements can be overridden based on project-specific considerations (33 CFR 332[b][2]).

OTHER GOVERNMENTAL AUTHORIZATIONS: Water quality certification (WQC) or a waiver, as required under Section 401 of the Clean Water Act, will be required for DA authorizations verified under RGP 1. Activities authorized under RGP 1 may also require authorizations from other Federal, state and local agencies, including, but not limited to the California Department of Fish and Wildlife, Contra Costa County and local cities.

HISTORIC PROPERTIES: The issuance of RGP 1 will have no potential to affect cultural resources. However, authorization of activities under RGP 1 may affect cultural resources. The Corps will determine if the activity proposed for authorization under RGP 1 may affect cultural resources listed in or eligible for listing in the National Register of Historic Places and will initiate consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.

ENDANGERED SPECIES: The issuance of RGP 1 will have no effect on Federally-listed threatened or endangered species or their critical habitat that are protected by the Endangered Species Act. However, authorization of activities under RGP 1 may affect Federally-listed species. The Corps will determine if the activity proposed for authorization under RGP 1 may affect Federally-listed species. Authorizations under RGP 1 shall comply with the mandatory terms and conditions of the U.S. Fish and Wildlife Service’s (USFWS) “Programmatic Biological Opinion for a Regional General Permit for the East Contra Costa Habitat Conservation Plan/Natural Community Conservation Plan, Contra Costa County, California” (USFWS #81420-2011-F-0655, dated April 30, 2012) (copy attached). The Corps will initiate programmatic consultation with the U.S. Fish and Wildlife Service, as appropriate. If the proposed activity may affect Federally-listed endangered or threatened species that are not covered under the Programmatic Biological Opinion, specifically, species under the authority of the National Marine Fisheries Service, the Corps will initiate consultation with the National Marine Fisheries Service, pursuant to Section 7 of the Endangered Species Act, as appropriate.

ESSENTIAL FISH HABITAT: The reissuance of RGP 1 will have no effect on essential fish habitat, nor would conducting proposed activities under RGP 1.

EVALUATION FACTORS: The decision whether to reissue RGP 1 will be based on an evaluation of the probable impacts, including cumulative impacts, of the described activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonably may be expected to accrue from RGP 1, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the described activity will be considered, including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. The RGP’s impact on the public interest will include application of the Section 404(b)(1) guidelines promulgated by the Administrator, Environmental Protection Agency (40 CFR Part 230).

The Corps is soliciting comments from the public, Federal, State, and local agencies and officials, Indian tribes, and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

SUBMITTING COMMENTS: Written comments, referencing Public Notice SPK-2001-00147 must be submitted to the office listed below on or before April 21, 2017. Comments are encouraged to be e-mailed to the maximum extent possible.

Mary Pakenham-Walsh, Senior Project Manager
US Army Corps of Engineers, Sacramento District
1325 J Street, Room 1350
Sacramento, California 95814-2922

Email: Mary.R.Pakenham-Walsh@usace.army.mil

The Corps is particularly interested in receiving comments related to the proposal's probable impacts on the affected aquatic environment and the secondary and cumulative effects. Anyone may request, in writing, that a public hearing be held to consider this application. Requests shall specifically state, with particularity, the reason(s) for holding a public hearing. If the Corps determines that the information received in response to this notice is inadequate for thorough evaluation, a public hearing may be warranted. If a public hearing is warranted, interested parties will be notified of the time, date, and location. Please note that all comment letters received are subject to release to the public through the Freedom of Information Act. If you have questions or need additional information please contact the applicant or the Corps' project manager Mary Pakenham-Walsh, (916) 557-7718, Mary.R.Pakenham-Walsh@usace.army.mil.

Attachments: Draft RGP 1 with 4 attachments (Figures 1a-1b, Tables 1-2, programmatic biological opinion)