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Public Notices

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-2021-00278, Public Notice of (Permit Application), Black Rascal Creek Flood Control, Merced County, CA

Published Nov. 3, 2021
Expiration date: 11/17/2021

Comment Period:  November 3, 2021– November 17, 2021

SUBJECT:  The U.S. Army Corps of Engineers, Sacramento District, (Corps) is evaluating a permit application for the discharge dredged or fill material and/or work in approximately 3.015 acres of waters of the United States to construct the Black Rascal Creek Flood Control project.  This notice is to inform interested parties of the proposed activity and to solicit comments.

AUTHORITY:  This application 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.

APPLICANT:      Merced County Department of Public Works, Attn: Ms. Dana Hertfelder, 345 W 7th Street, Merced, California  95341

LOCATION:  The approximately 300.0-acre project site is located east of the City of Merced in Section 12, Township 7 South, Range 14 East, MDB&M, Latitude 37.33889°, Longitude -120.38887°, adjacent to the north side of East Yosemite Avenue, Merced County, California, and can be seen on the Merced USGS Topographic Quadrangle.

PROJECT DESCRIPTION:  The applicant is proposing to construct a flood control basin on Black Rascal Creek.  This basin will be divided into two subbasins.  These basins are separated by Black Rascal Creek and a State Plan of Flood Control levee.  This levee will be removed to allow floodwaters to enter the basin.  The existing berms adjacent to an irrigation ditch in the southern portion of the project will also be removed with the creation of the basin.  The project proposes to fill 3.015 acres of waters of the United States for the construction of this project with the modification of the Black Rascal Creek channel.  The project proposes to limit the peak flow of Black Rascal Creek to 3,000 cubic feet per second with the creation of the detention basin, spillways, and channel modifications.  The project proposes to also enhance the Black Rascal Creek drainage with riparian plantings within the basin once it is constructed.  Based on the available information, the overall project purpose is to reduce flooding downstream of the project site.  The applicant believes there is a need to construct this project to provide flood protection to the communities within the City and County of Merced downstream of the project site.  The applicant has identified that the project purpose is to temporarily detain flood waters during periods of heavy precipitation by limiting the flow of Black Rascal Creek thus also reducing the peak flows of Bear Creek also downstream of the project site.  The applicant has stated that there is a need for this project.  The associated drawings provide additional project details.


Environmental Setting.  The proposed project is located in a vernal pool landscape on Black Rascal Creek.  The proposed project site is also located southeast of Yosemite Lake and is currently made up of approximately 70.0 acres of cattle grazing lands and 230.0 acres of almond orchards.  There are approximately 14.0 acres of  wetlands and waters within the project area. Waters of the United States located within the project boundaries include a reach of Black Rascal Creek, ditches, emergent marsh, and vernal pools.

Alternatives.  The applicant has provided information concerning project alternatives.  Additional information concerning project alternatives may be available from the applicant or their agent.  Other alternatives may develop during the review process for this permit application.  All reasonable project alternatives, in particular those which may be less damaging to the aquatic environment, will be considered.

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 applicant has proposed to mitigate for the proposed project at an approved mitigation bank or through the Corps’ n-lieu fee program.  Additionally, the applicant is proposing to create riparian habitat on-site within the basin that will not be monitored.

OTHER GOVERNMENTAL AUTHORIZATIONS:  Water quality certification or a waiver, as required under Section 401 of the Clean Water Act from the California Regional Water Quality Control Board is required for this project.  The applicant has indicated they have applied for certification.  This project will also need approval from the Central Valley Flood Protection Board and the Corps of Engineers under Section 408 for levee and flood control concerns.  U.S. Department of Agriculture, Natural Resources Conservation Service, is the federal lead agency for this project.  Additional governmental authorizations may be required for this project.

HISTORIC PROPERTIES:  Based on the available information, potentially eligible cultural resources may be affected by the proposed project.  The Corps will participate in consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.

ENDANGERED SPECIES:  The proposed activity may affect Federally-listed endangered or threatened species or their critical habitat.  The Corps will participate in consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service, pursuant to Section 7 of the Endangered Species Act, as appropriate.

ESSENTIAL FISH HABITAT:  The proposed project may adversely affect Essential Fish Habitat.  The Corps will participate in consultation with the National Marine Fisheries Service, pursuant to Magnuson-Stevens Fishery Conservation and Management Act, as appropriate.

The above determinations are based on information provided by the applicant and our preliminary review.

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 activity'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-2021-00278 must be submitted to the office listed below on or before November 17, 2021.  Please submit your comments by email to:

Ms. Kathy Norton, Sr. Project Manager

US Army Corps of Engineers, Sacramento District

1325 J Street, Room 1350

Sacramento, California  95814-2922


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’s consultant Mr. Michael Clary of Jacobs Engineering, at, or the Corps' project manager Ms. Kathy Norton, (916) 557-5260,

Attachments: 27 drawings