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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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SPL-2022-00120, Public Notice of Regional General Permit for Caltrans Middle-Mile Broadband Network

REGULATORY DIVISION
Published Feb. 9, 2023
Expiration date: 3/11/2023

Comment Period:     February 9 – March 11, 2023

Summary

The U.S. Army Corps of Engineers Los Angeles, Sacramento, and San Francisco Districts (Districts) are proposing to issue Regional General Permit (RGP) 23 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 Middle-Mile Broadband Network fiber optic infrastructure in the State of California.  

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.

Interested parties are hereby notified the U.S. Army Corps of Engineers Los Angeles, Sacramento, and San Francisco Districts (Districts) are proposing to issue Regional General Permit (RGP) 23 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 Middle-Mile Broadband Network fiber optic infrastructure in the State of California. We invite you to review today’s public notice and provide views on the proposed RGP.  

By providing substantive comments to the Corps Regulatory Division, you provide information that supports the Corps’ decision-making process.  All comments received during the comment period become part of the record and will be considered in the decision.  This Regional General Permit will be issued, issued with special conditions, or not issued under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act.

Submitting Public Comments

Written comments, referencing Public Notice SPL-2022-00120, must be submitted to the office listed below on or before March 11, 2023

U.S. Army Corps of Engineers
Los Angeles District, Regulatory Division
Attn: Gerardo Hidalgo
60 South California Street, Suite 201
Ventura, California 93001-2598
Email: Gerardo.L.Hidalgo@usace.army.mil

The mission of the U.S. Army Corps of Engineers Regulatory Program is to protect the Nation's aquatic resources, while allowing reasonable development through fair, flexible and balanced permit decisions. The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands.  The Regulatory Program in the Los Angeles District is executed to protect aquatic resources by developing and implementing short- and long-term initiatives to improve regulatory products, processes, program transparency, and customer feedback considering current staffing levels and historical funding trends.

Corps permits are necessary for any work, including construction and dredging, in the Nation's navigable water and their tributary waters.  The Corps balances the reasonably foreseeable benefits and detriments of proposed projects and makes permit decisions that recognize the essential values of the Nation's aquatic ecosystems to the general public, as well as the property rights of private citizens who want to use their land. The Corps strives to make its permit decisions in a timely manner that minimizes impacts to the regulated public.

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.

Preliminary Review of Selected Factors

EIS Determination- A preliminary determination has been made an environmental impact statement is not required for the proposed work.

Activities Affecting Structures or Works Built by the United States-- 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., the State Water Resources Control Board, authorized tribes, and EPA region) 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.

Coastal Zone Management- Federal Consistency Certification is required by Section 307(c) of the Coastal Zone Management Act for an activity which may directly affect a State’s coastal zone. Activities covered under the proposed RGP may directly affect a State’s coastal zone. If applicable, a project proponent would need to certify compliance with the appropriate Coastal Zone Management program and obtain concurrence from the applicable Coastal Zone Management Authority before an activity could be verified under this RGP. For this RGP, Caltrans will act as the NEPA Lead Agency, pursuant to the NEPA Assignment memorandum of understanding (MOU) with the Federal Highway Administration (FHWA). As the federal lead agency for this project, Caltrans would initially be responsible for complying with Federal Consistency Certification requirement for such projects.

Essential Fish Habitat- Activities covered under the proposed RGP may adversely affect Essential Fish Habitat. For this RGP, Caltrans will act as the NEPA Lead Agency, pursuant to the NEPA Assignment MOU with the FHWA. As the federal lead agency for this project, Caltrans would initially be responsible for determining the presence or absence of EFH and the need to conduct consultation with the National Marine Fisheries Service, pursuant to Magnuson-Stevens Fishery Conservation and Management Act Section 305(5(b)(2), as appropriate. Caltrans would initiate project-specific consultation with NMFS for projects that may affect EFH. If programmatic EFH consultation is applicable to a project, the programmatic consultation would be listed in the submittal to the Corps and compliance with terms and conditions would be documented.

Historic Properties- Potentially eligible cultural resources may be affected by activities covered under the proposed RGP. For this RGP, Caltrans will act as the NEPA Lead Agency, pursuant to the NEPA Assignment MOU with the FHWA. As the federal lead agency for this undertaking, Caltrans would initially be responsible for the identification and assessment of effects on historic properties within or near broadband activities and for consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act, as appropriate.

An existing Section 106 programmatic agreement for FHWA-assisted projects in California entitled “Programmatic Agreement Among the Federal Highway Administration, the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, and the California Department of Transportation Regarding Compliance with Section 106 of the National Historic Preservation Act as it Pertains to the Administration of the Federal-Aid Highway Program in California” issued on January 1, 2004, and amended in 2014, may be applicable for some of the projects to be permitted under the RGP. The Corps a is signatory to this Section 106 programmatic agreement and will send a letter to the State Historic Preservation Officer to request use of this Section 106 programmatic agreement for activities covered under the proposed RGP.

Where Caltrans does not own the right of way, the Corps or other federal landowners may be the federal lead agency for NEPA and would initiate consultation with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act for individual projects, as appropriate.

Endangered Species- Activities covered under the proposed RGP may affect Federally-listed endangered or threatened species or their critical habitat. For this RGP, Caltrans will act as the NEPA Lead Agency, pursuant to the NEPA Assignment MOU with the FHWA. As the federal lead agency for this project, Caltrans would initially be responsible for determining the presence or absence of federally-listed species and designated critical habitat and the need to conduct consultation with the U.S. Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS), pursuant to Section 7 of the Endangered Species Act, as appropriate.

Caltrans would initiate project-specific ESA Section 7 consultation with the USFWS and/or NMFS for projects that may affect federally-listed species and/or their designated critical habitat. If programmatic ESA consultation is applicable to a project, the programmatic consultation would be listed in the submittal to the Corps and compliance with terms and conditions would be documented.

Where Caltrans does not own the right of way, the Corps or other federal landowners may be the federal lead agency for NEPA and would initiate project-specific ESA Section 7 consultation with the USFWS and/or NMFS, as appropriate.

Public Hearing- Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application.  Requests for public hearing shall state with particularity the reasons for holding a public hearing.

Proposed Regional General Permit

            Refer to Enclosure 1.

Additional Project 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 RGP 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.

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.

For additional information please call Gerardo Hidalgo at (805) 585-2145 or via e-mail at Gerardo.L.Hidalgo@usace.army.mil. This public notice is issued by the Chief, Regulatory Division.

Enclosures:
MMBN RGP23
MMBN 10K Vicinity Map
CDT Districts Map