SPK-2022-00120, Public Notice of Proposed Regional General Permit for Wildfire Activities in the State of California.

Comment Period: 12AUG2022 – 12SEPT2022

SUBJECT: The U.S. Army Corps of Engineers Los Angeles, Sacramento, and
San Francisco Districts (Districts) are proposing to issue Regional General Permit (RGP) 1 authorizing activities involving the discharge of dredged or fill material into waters of the United States, including wetlands, and/or work in or affecting navigable waters of the United States for wildfire protection, prevention, response, clean-up, and restoration in the State of California. This notice is to inform interested parties of the proposed activity and to solicit comments.

AUTHORITY: Section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States and Section 10 of the Rivers and Harbors Act of 1899 for structures or work in or affecting navigable waters of the United States.

LOCATION: All waters of the United States, including navigable waters, within the State of California.

ACTIVITIES COVERED: Wildfire activities, including protection, prevention, response, clean-up, and restoration that involve the discharge of dredged or fill material into waters of the United States, including wetlands, and/or work in or affecting navigable waters of the United States. See Table 1.

Table 1: Wildfire Activities Covered under RGP 1

EXCLUSIONS:

Repair Damaged Uplands. This RGP would not be used to reclaim lands lost to normal erosion processes over an extended period.

Debris Retention Structures. This RGP would not authorize the construction of new permanent debris retention structures in waters of the United States. New permanent structures shall be specifically approved by the Corps under separate authorization.

Stream Channelization and Relocation. This RGP would not authorize new stream channelization or stream relocation projects. Stream channelization or relocation shall be specifically approved by the Corps under separate authorization.

Electric and Telecommunication Lines. This RGP would not authorize the construction of new electric utility lines or telecommunication lines in areas where they currently do not exist. Existing above ground lines proposed to be buried or replaced in-kind would be considered improvement or replacement. New electric utility lines or telecommunication lines shall be specifically approved by the Corps under separate authorization.

TERMS OF AUTHORIZATION:

Avoidance and Minimization. Activities must be designed and constructed to minimize adverse effects to waters of the U.S., including navigable waters, to the maximum extent practicable.

Thresholds. Loss of waters of the U.S., including the loss of streambed, shall be determined using the definition in Section F of the March 15, 2021, Federal Register Notice for Reissuance and Modification of Nationwide Permits; Final Rule (86 FR 2744), which can be found at: https://www.federalregister.gov/documents/2021/01/13/202100102/reissuance-andmodification-of-nationwide-permits.

a Loss of waters of the U.S., including wetlands, shall not exceed 0.5 acre or 300-linear feet of streambed; and,

2. The linear foot loss of streambed shall be included in the 0.5-acre threshold for loss of waters of the U.S.

Restoration. To be authorized by the proposed RGP, restoration activities must restore the aquatic resource to pre-fire conditions (e.g., the same stream width, depth, slope, and vegetation), to the maximum extent practicable, and must resemble an appropriate aquatic ecological reference site. An ecological reference may be based on the characteristics of one or more intact aquatic habitats or riparian areas of the same type that exist in the region. An ecological reference may be based on a conceptual model developed from regional ecological knowledge of the target aquatic habitat type or riparian area. The Corps retains the right to determine the extent of the pre-existing conditions and the extent of any restoration work authorized by this permit.

Bank Stabilization. Any activity that involves new bank stabilization shall be done using bioengineered design techniques, such as vegetative plantings, root wads, and/or large woody debris, unless determined to be not practicable by the Corps. Bank stabilization must not be more than 1,000 feet along the length of the treated bank, below the plane of the ordinary high-water mark or the high tide line, unless the Corps waives this criterion by making a written determination concluding that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects. Restoration of damaged bank stabilization must not exceed the contours or length that existed before the damage occurred.

Repair, Replacement, or Rehabilitation of Existing Structures or Fills. Minor deviations in the structure’s configuration or filled area, including those due to changes in materials, construction techniques, requirements of other regulatory agencies, or current construction codes or safety standards that are necessary to make the repair, rehabilitation, or replacement are authorized.

Removal of Accumulated Sediment, Debris, and Vegetation. The removal of sediment, debris, and/or vegetation is limited to the minimum necessary to restore the waterway. All dredged or excavated materials must be deposited and retained in an area that has no waters of the United States, unless otherwise specifically approved by the Corps under separate authorization. Proper sediment controls must be used (see 401 water quality certification).

Temporary Construction, Access, and Dewatering. Appropriate measures must be taken to maintain near normal downstream flows and to minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges of dredged or fill material, including cofferdams, are necessary for construction activities, access fills, or dewatering. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. The use of dredged material may be allowed if the Corps determines that it will not cause more than minimal adverse environmental effects. Following completion of construction, temporary fills must be removed, and the affected areas must be restored to pre-construction elevations. The affected areas must also be revegetated, as appropriate. Structures left in place after construction is completed require a separate section 10 permit if located in navigable waters of the United States. (See 33 CFR part 322).

Wetland Protection Matting. Mats must be adequately anchored, of sufficient weight, or installed in a manner that prevents relocation by expected high flows. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable. Temporary mats must be removed upon completion of the work, in accordance with the requirements for temporary fills.

Temporary and Permanent Access Roads. All access roads must be constructed so that the length of the road minimizes any adverse effects on waters of the United States and must be as near as possible to pre-construction contours and elevations (e.g., at grade corduroy roads or geotextile/gravel roads). Access roads used for both construction and maintenance may be authorized, provided they meet the terms and conditions of this permit. Temporary access roads must be removed upon completion of the work, in accordance with the requirements for temporary fills.

Utility Line Activities. Material resulting from trench excavation may be temporarily side cast into waters of the United States for no more than 90 days, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The Corps may extend the period of temporary side casting for no more than a total of 180 days, where appropriate. In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the trench. The trench cannot be constructed or backfilled in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a french drain effect). Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody. There must be no change in pre-construction contours of waters of the United States.

This RGP would authorize, to the extent that Department of the Army authorization is required, temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through sub-soil fissures or fractures that might occur during horizontal directional drilling activities. These remediation activities must be done as soon as practicable, to restore the affected waterbody. The Corps may add special conditions to the permit to require a remediation plan for addressing inadvertent returns of drilling fluids to waters of the United States during horizontal directional drilling activities.

GENERAL CONDITIONS:

See attached

ADDITIONAL INFORMATION:

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

1. Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or
2. 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.

Alternatives. The Corps will evaluate alternatives to the proposed RGP, including alternative terms and conditions.

Mitigation. This office will determine the need for appropriate and practicable compensatory mitigation necessary to ensure that adverse effects on the aquatic environment are minimal. Compensatory mitigation may be required for permanent or temporary discharges of dredged or fill material that convert waters of the U.S. to non-waters of the U.S. Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub-shrub wetland to an herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level. Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee-responsible mitigation. When developing a compensatory mitigation proposal, permittees must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR Part 332.

OTHER GOVERNMENTAL AUTHORIZATIONS:

Activities Affecting Structures or Works Built by the United States. Wildfire activities covered under the proposed RGP may require review by, or permission from, the Corps pursuant to 33 U.S.C. 408 because they may alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers (USACE) federally authorized Civil Works project (a “USACE project”). Any activity that requires section 408 permission and/or review would not be authorized by this RGP until the appropriate Corps office issues the section 408 permission or completes its review to alter, occupy, or use the USACE project, and the Corps issues a written RGP verification.

Section 401 Water Quality Certification. Water quality certification (WQC) is required by Section 401 of the Clean Water Act, for an activity which may result in a discharge from a point source into waters of the United States. The Corps will send letters to certifying agencies (i.e., states, authorized tribes, or EPA region, as appropriate) to request water quality certification for this RGP. Water quality certification for this RGP may be granted without conditions, granted with conditions, denied, or waived. If a certifying agency denies WQC, then the discharges are not authorized unless and until a project proponent obtains individual WQC for the specific discharge, or a waiver occurs.

Historic Properties. Potentially eligible cultural resources may be affected by wildfire activities covered under the proposed RGP. The Corps will initiate consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.

Endangered Species. Wildfire activities covered under the proposed RGP may affect Federally listed endangered or threatened species or their critical habitat. The Corps will initiate 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. Wildfire activities covered under the proposed RGP may adversely affect Essential Fish Habitat. The Corps will initiate consultation with the National Marine Fisheries Service, pursuant to Magnuson-Stevens Fishery Conservation and Management 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 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-2022-00120, must be submitted to the office listed below on or before 12SEPT2022.

U.S. Army Corps of Engineers
Sacramento District, Regulatory Division
Attn: Leah M. Fisher
Regional Permit Specialist
1325 J Street, Room 1350
Sacramento, California  95814-2922
Email: Leah.M.Fisher@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 Ms. Leah M. Fisher, at (916) 557-6639, or Leah.M.Fisher@usace.army.mil.

Attachment:

Draft RGP1-Wildfire Activities