Comments Period: May 15 – June 14, 2018
SUBJECT: The U.S. Army Corps of Engineers, Sacramento District, (Corps) proposes a multi-tiered approach to Clean Water Act Section 404 (CWA 404), or “CWA 404 permit strategy,” for activities that involve a discharge of dredged or fill material into waters of the United States, and covered by the South Sacramento Habitat Conservation Plan (SSHCP) proposed under Section 10 of the Endangered Species Act (ESA). The SSHCP requires approval of a species incidental take permit under Section 10 of the ESA from the U.S. Fish and Wildlife Service (USFWS). This notice is to inform interested parties and to solicit comments.
AUTHORITY: This permit strategy 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 proposed permit strategy would be applicable to the SSHCP Plan Area, which encompasses approximately 317,655 acres within Sacramento County (Attachment 1). The Plan Area includes the City of Galt and the City of Galt’s sphere of influence, and the portion of the City of Rancho Cordova that is located south of U.S. Highway 50. The Plan Area excludes the northern portion of Sacramento County, the portion of Rancho Cordova located north of U.S. Highway 50, the City of Sacramento, City of Elk Grove, City of Folsom, sovereign lands of the Miwok Tribe, and the Sacramento County community of Rancho Murieta.
BACKGROUND AND RELATED DOCUMENTATION: The SSHCP proposes to cover twenty-eight species of plants and wildlife, including ten that are state and/or Federally-listed as threatened or endangered. The SSHCP is a regional approach to address issues related to planned development and species habitat conservation. The six SSHCP “Plan Partners” are the County of Sacramento, City of Galt, City of Rancho Cordova, Sacramento County Water Agency, Sacramento Regional County Sanitation District, and the Southeast Connector Joint Powers Authority. The Sacramento District has been coordinating with the USFWS and Plan Partners, and others, since 2004 to develop and implement a “streamlined” approach to permitting under CWA 404 that encompasses a number of different permit types and processes. The Corps’ CWA 404 permit strategy is intended to provide for better assurances and quicker permit decisions for the regulated public, while protecting aquatic resources to an equal or greater level consistent with existing regulations, policies and processes.
Before the USFWS can issue an incidental take permit under Section 10 of the ESA, the agency is required to comply with the National Environmental Policy Act (NEPA). As an action significantly affecting the quality of the human environment, the SSHCP requires the USFWS prepare an Environmental Impact Statement (EIS) under NEPA that will include impact analyses of all SSHCP covered activities within the Plan Area, for the duration of the SSHCP (50 years, as proposed). The Corps is a cooperating agency on this EIS, which along with associated documents including the SSHCP and a SSHCP Aquatic Resource Program, provides the most comprehensive description and assessment of the proposed CWA 404 permit strategy. The Sacramento District intends to use the EIS in a programmatic manner to underpin its CWA 404 permit strategy.
The timing of this public notice has been aligned as closely as possible with the publishing of the Final EIS for the SSHCP on May 11, 2018, for a 30-day public comment period. The CWA 404 permit strategy (Attachments 2 – 5 of this PN) is contained in Appendix C of the SSHCP Final EIS. The Final EIS can be viewed at http://southsachcp.com. As described below, the initial draft CWA 404 permit strategy was provided in the SSHCP Draft EIS, published in June 2017. The Sacramento District published a concurrent public notice.
OVERVIEW OF CWA 404 PERMIT STRATEGY: A multi-tiered approach to CWA 404 permitting will address activities which involve discharges of dredged or fill material into waters of the U.S. covered by the SSHCP. Attachment 2, CWA 404 Permit Strategy Aligned with the South Sacramento Habitat Conservation Plan, provides a summary of the permit strategy. The strategy consists of the use of:
• A programmatic general permit (PGP) founded on a local aquatic resources protection program to be implemented through local aquatic resource ordinances, and designed to reduce duplication with that program, for activities with minimal individual and cumulative effects on the aquatic environment. A final draft PGP is provided as Attachment 3.
• A procedure for issuing Letters of Permission (LOPs) for activities with more than minimal but less than significant effects on the human environment, including aquatic resources. A final draft procedure for issuing LOPs is provided as Attachment 4.
• An abbreviated process for issuing standard permits (SPs) for other activities consistent with the SSHCP that may have a significant impact on the human environment, and require the preparation of an EIS under NEPA. The proposed approach for processing abbreviated SPs is summarized on pg. 4 of Attachment 2, and described in greater detail in Attachment 5.
The Sacramento District’s proposed CWA 404 permit strategy was provided in the Draft EIS for the SSHCP published in June 2017. Following public input on the Draft EIS, coordination with the Plan Partners, resource agencies and others, and review of any new information that becomes available, the Sacramento District’s CWA 404 permit strategy and final draft permit instruments were updated and have been included for public review in the Final EIS for the SSHCP. With adoption of the EIS, the Sacramento District will complete its ROD, issue final permit instruments, finalize establishment of the SSHCP ILF Program, and implement the CWA 404 permit strategy.
Environmental Setting. The environmental setting for the approximately 317,655-acre SSHCP Plan Area consists of two physiographic regions. The first is the lower Sacramento Valley, which extends through the western and central parts of the County from north to south. The lower Sacramento Valley region is the predominate region within the Plan Area and is characterized as nearly level to gently rolling, although some areas in the eastern part of the Plan Area are rolling to hilly and the relatively flat terrain is broken up by low and high terrace formations. The second region is the Sierra Nevada foothills, which are located along the northeast edge of the Plan Area. The terrain in this area is characterized as rolling to hilly. Additional information on environmental setting is available in the SSHCP Final EIS, inclusive of the SSHCP document, located at the web site noted above.
Mitigation. The Corps requires that applicants consider and use all reasonable and practical measures to avoid and minimize impacts to aquatic resources. If the applicant is unable to avoid or minimize all impacts, the Corps may require compensatory mitigation. The SSHCP Plan Partners propose to develop an in-lieu fee (ILF) program to provide compensatory mitigation for impacts to waters of the U.S., including wetlands, under Section 404 of the Clean Water Act. The ILF Program development is currently underway, and would undergo public noticing procedures in accordance with the requirements of the Federal mitigation rule (33 CFR Part 332).
OTHER GOVERNMENTAL AUTHORIZATIONS: The issuance of the proposed PGP and LOP procedure would not would not require other governmental authorizations. A water quality certification or a waiver, as required under Section 401 of the Clean Water Act from the Central Valley Regional Water Quality Control Board is required for activities authorized under the CWA 404 permit strategy. The Sacramento District will request programmatic water quality certification under CWA 401 from the Central Valley Regional Water Quality Control Board for all activities under the CWA 404 permit strategy (as noted in Attachment 2).
HISTORIC PROPERTIES: The issuance of the proposed PGP and LOP procedure would have no potential to affect cultural resources. Authorization of activities under the CWA 404 permit strategy may affect cultural resources. The Corps will initiate consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act (NHPA), as appropriate. The Corps proposes to develop a Programmatic Agreement for compliance with Section 106 of the NHPA.
ENDANGERED SPECIES: The issuance of the proposed PGP and LOP procedure would have no effect on threatened or endangered species. Authorization of activities under the CWA 404 permit strategy may affect threatened or endangered species. The Sacramento District will request from the USFWS programmatic consultation under Section 7 of the Endangered Species Act for coverage of activities authorized under the CWA 404 permit strategy (as noted in Attachment 2).
ESSENTIAL FISH HABITAT: The issuance of the proposed PGP and LOP procedure would not adversely affect Essential Fish Habitat (EFH) as defined in the Magnuson-Stevens Fishery Conservation and Management Act. Authorization of activities under the CWA 404 permit strategy are not expected to adversely affect EFH, since there are no fish included as covered species in the SSHCP.
The above determinations are based on available information and our preliminary review.
EVALUATION FACTORS: The decision whether to issue the proposed PGP and LOP procedure, and to implement an abbreviated process for issuing SPs (collectively, CWA 404 permit strategy), will be based on an evaluation of the probable impacts, including cumulative impacts, 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 use of the CWA 404 permit strategy, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the CWA 404 permit strategy 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 proposed CWA 404 permit strategy’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 CWA 404 permit strategy. Any comments received will be considered by the Corps to determine whether to issue the proposed PGP and/or LOP procedure, and/or to implement the proposed abbreviated process for issuing SPs. 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 will be considered by the Sacramento District Corps as a cooperating agency on the SSHCP 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-1995-00386 must be submitted to the office listed below on or before June 14, 2018.
Mary Pakenham-Walsh, Senior Project Manager
US Army Corps of Engineers, Sacramento District
1325 J Street, Room 1350
Sacramento, CA 95814-2992
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.
Attachment 1: SSHCP Plan Area
Attachment 2: CWA 404 Permit Strategy Aligned with the SSHCP
Attachment 3: SSHCP (final draft) Programmatic General Permit
Attachment 4: SSHCP (final draft) Minor Impact Letter of Permission Procedure
Attachment 5: SSHCP Abbreviated Standard Permit Process