Comment Period: December 4, 2020 – January 3, 2021
SUBJECT: The Sacramento District proposes to reauthorize PGP 10 for five years with modifications. As part of the process for reauthorizing the permit, the District is evaluating the need to revise the procedures, terms and conditions. The text of the proposed PGP 10 is attached. This notice is to inform interested parties of the Sacramento District’s proposed action and is soliciting comments on the proposed reissuance of PGP 10.
AUTHORITY: This application is being evaluated under Section 10 of the Rivers and Harbors Act (RHA) of 1899 for structures or work in or affecting navigable waters of the United States and Section 404 of the Clean Water Act (CWA) for the discharge of dredged or fill material in waters of the United States.
LOCATION: The PGP 10 applies to all streams in the State of Utah that are part of a surface tributary system and over which the State Engineer has regulatory authority under the State’s Stream Alteration Permit Program (Section 73-3-29, Utah Code Annotated). This general permit does not apply to springs, lakes, wetlands or other waters to which the State’s Stream Alteration Program does not apply. Additionally, this general permit does not apply to activities undertaken on Tribal lands due to the lack of the State’s authority over these lands.
BACKGROUND: General Permits are a form of Department of Army authorization that are issued for structures, work, or discharges that will result in only minimal individual and cumulative adverse effects. General permits are issued on a nationwide, regional, or state basis for particular categories of activities. This Programmatic General Permit was first issued by the Corps on November 2, 1987. It authorized activities that had minimal adverse effects on the aquatic environment that fall under the Corps’ Regulatory Program and that had also been authorized through a Utah Stream Alteration Permit. After 1987, PGP 10 has been reissued every five years.
Activities authorized under this PGP include, but are not limited to, culvert installation and extension, bridges, low water crossings, utility crossings, bank stabilization, linear transportation projects, diversion structures, outfall structures, boat ramps, docks, commercial and residential construction, flood control facilities, and maintenance of previously permitted activities.
This PGP was reissued on February 22, 2016 and will expire on February 22, 2021. The process for modifying and reissuing the PGP for the next five-year cycle starts with the publication of the public notice which has a 30-day comment period.
STATUS OF EXISTING PERMITS: Activities authorized by the PGP 10 currently remain authorized until February 21, 2021. Activities verified by the Corps under this permit are valid until the date this PGP expires. In the event that this PGP expires when the project is under construction or under contract to begin construction, the applicant will have up to one year after the permit expiration to complete the work. If work has not commenced or is not under contract at the time of expiration, a new application must be submitted under the revised terms and conditions of PGP 10.
SUMMARY OF PROPOSAL: We are proposing to reauthorize PGP 10 with the following modifications:
We propose to modify the level of impact authorized by this permit from no more than 500 linear feet for perennial/intermittent streams and 750 linear feet for ephemeral streams to a consistent level of no more than 300 linear feet for activities in streams. This modification is being proposed as a result of the limited information the Corps requires for processing of these applications, the limited evaluation/processing timeframe for the proposed activities, and to bring the authorizations into better compliance with Section 106 of the National Historic Preservation Act (NHPA). Additionally, the cumulative impacts analysis for PGP 10 verifications for the period between February 21, 2016 to November 23, 2020 demonstrated that approximately 90% of projects verified included stream impacts of 300 linear feet or less. Therefore, the limitations of this permit are proposed to be modified to more appropriately capture the scope of work for projects that are being evaluated under this permit.
We also propose to clarify that the relocation of streams for the purposes of restoration activities is authorized by this permit. Currently, PGP 10 has a blanket prohibition regarding the relocation of streams. The Corps is proposing to retain this restriction with the exception of relocation for purposes of restoration, provided the project results in a net increase in aquatic resource functions and services. This modification would result in more activities being eligible for PGP 10 authorization.
We are proposing to modify this permit to authorize projects that may affect historic properties and/or federally-listed threatened and endangered species when another federal agency is involved in the project (i.e. conducting the work, issuing a permit, lease, funding, etc.) and was the lead federal agency for purposes of determining compliance with the NHPA and/or the Endangered Species Act. That federal agency’s compliance covers the PGP activity because
it is undertaking or authorizing the PGP activity and possibly other related activities that are part of a larger overall federal project or action. This modification would result in more activities being eligible for PGP 10 authorization.
We are proposing to reauthorize the existing PGP 10 general conditions, with the inclusion of the following four additional general conditions:
- The permittee shall design all bank stabilization activities using bio-engineering techniques to the maximum extent practicable, unless the Corps determines it to not be practicable.
- The permittee is responsible for all authorized work and ensuring that all contractors and workers are made aware of and adhere to the terms and conditions of the permit authorization. You shall ensure that a copy of the permit authorization and associated drawings are available and visible for quick reference at the site until all installation activities are completed.
- To the maximum extent practicable, the preconstruction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the preconstruction course, condition, capacity, and location of open waters if it benefits the aquatic environment (e.g., stream restoration or relocation activities).
- If the permittee sells the property associated with this PGP verification, the permittee may transfer the permit verification to the new owner by submitting a letter to the Corps office to validate the transfer. A copy of the PGP verification and new landowner information must be attached to the letter requesting transfer.
We are requesting comments on two additional alternatives related to the authorization of
PGP 10.
- Keep the PGP 10 as is. Under this scenario, deficiencies with the permit would not be corrected, and information needed to consistently evaluate stream impacts would not be provided. Re-issuing the PGP 10 as is could result in non-compliance with Section 106 of the NHPA. It may also increase processing times by generating requests for additional information, causing unnecessary delays for the general public and a higher workload for Corps and State staff.
- Not re-issuing PGP 10. Under this scenario, the PGP 10 permit would not be reauthorized and would expire on February 21, 2021. All actions would be required to be processed under a Nationwide Permit or other form of Department of the Army authorization. Not re-issuing the PGP 10 would increase the amount of information applicant are required to submit for a complete application and increase processing times for permit decisions, in addition to duplicating the applicants’ efforts in applying for authorization for the same proposed project.
We are soliciting comment on the proposed changes to the PGP 10 as discussed above. We are proposing these modifications to simplify and clarify the PGP 10, reduce burdens on the regulated public, and continue to comply with the statutory requirement that this PGP authorize only activities with no more than minimal individual and cumulative adverse environmental effects.
OTHER GOVERNMENTAL AUTHORIZATIONS: Water quality certification (WQC), or a waiver, is required under Section 401 of the Clean Water Act (CWA) for all activities authorized under Section 404 CWA. The Corps will request WQC for PGP 10 activities from the Utah Division of Water Quality upon issuance of tis public notice.
HISTORIC PROPERTIES: The reissuance of PGP 10 will have no potential to affect historic properties. However, the construction of projects under the authority of PGP 10 may affect historic properties. Following the receipt of a completed application checklist, the Corps will determine if the specific activity proposed for authorization under PGP 10 would affect historic properties listed on or eligible for listing on the National Register of Historic Places and will initiate consultation with the Utah State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.
ENDANGERED SPECIES: The reissuance of PGP 10 will have no effect on Federally-listed threatened or endangered species. However, the construction of projects under the authority of PGP 10 may affect Federally-listed threatened or endangered species. Following receipt of a completed application checklist, the Corps will determine if the specific activity proposed for authorization under PGP 10 would affect Federally-listed species, and will initiate consultation with the U.S. Fish and Wildlife Service, pursuant to Section 7 of the Endangered Species Act, as appropriate.
EVALUATION FACTORS: The decision whether to issue a permit 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 the described activity, 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 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 reissue with modifications or not to reissue this PGP. 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 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-2002-50464 must be submitted to the office listed below on or before January 3, 2021.
Ms. Nicole Fresard, Project Manager
US Army Corps of Engineers, Sacramento District
533 West 2600 South, Suite 150
Bountiful, Utah 84010
Email: Nicole.D.Fresard@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 Nicole Fresard, (801) 295-8380 ext. 8321, Nicole.D.Fresard@usace.army.mil
Attachments: Draft PGP 10