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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-1995-00386, Public Notice for the Proposed Re-issuance of Programmatic General Permit 17, Minimal Impact Activities under the South Sacramento Habitat Conservation Plan, and Regional General Permit 15, Minimal Impact Activities Under the South Sacramento In-lieu Fee Program.

REGULATORY DIVISION
Published Feb. 23, 2024
Expiration date: 3/23/2024

Comment Period: February 23, 2024 – March 23, 2024

SUBJECT: The U.S. Army Corps of Engineers, Sacramento District, (Corps) is proposing to re-issue Programmatic General Permit (PGP) 17 for Minimal Impact Activities Under the South Sacramento Habitat Conservation Plan and Regional General Permit (RGP) 15 for Minimal Impact Activities Under the South Sacramento In-lieu Fee Program. This notice is to inform interested parties of the proposed re-issuance of the PGP and RGP, and to solicit comments. This notice may also be viewed at the Corps web site: www.spk.usace.army.mil/Media/RegulatoryPublicNotices.aspx.

AUTHORITY: Section 404 of the Clean Water Act for the discharge of dredged or fill material in waters of the United States (Section 404).

LOCATION: The South Sacramento HCP (SSHCP) Plan Area and coextensive South Sacramento In-Lieu Fee Program (ILF program) encompass approximately 317,655 acres within Sacramento County (Figure 1, Attachment 1). The geographical boundaries of the Plan Area are U.S. Highway 50 and White Rock Road to the north, the Sacramento River levee, and County Road J11 (Walnut Grove-Thornton Road) to the west, the Sacramento County line with El Dorado and Amador Counties to the east, and with the San Joaquin County to the south. 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.

DESCRIPTION:

The Corps is proposing to re-issue the following general permits, with minor changes, for another 5 years:

PGP 17: PGP 17, issued on July 25, 2019, authorizes discharges of dredged or fill material into waters of the U.S. under Section 404 associated with activities covered by the SSHCP that are substantially similar in nature and result in minimal individual and cumulative impacts on the aquatic environment. The PGP requires project proponents to follow local Aquatic Resource Protection (ARP) ordinances, which provide the same or better level of protection of waters of the U.S. as currently exists under Section 404. Subject to certain exclusions and conditions, the PGP 17 eliminates the need for project proponents to seek separate review from the Corps for many activities that result in minimal impacts to waters of the U.S., when such activities are authorized by a Land Use Authority Permittees (LUAP) or the South Sacramento Conservation Agency Joint Powers Authority (SSCA) in compliance with the SSHCP Aquatic Resources Program, under a local ARP ordinance. In addition to reducing duplication with the SSHCP Aquatic Resources Program and local ARP ordinances, the PGP is designed to expedite review of certain covered activities through other programmatic elements, such as compliance with Section 7 of the federal ESA. The PGP increases certainty, reduces time, and improves efficiency for project applicants through synergies with processes implemented by local jurisdictions, such as those associated with land use entitlements, while protecting aquatic resources, including waters of the U.S. The PGP 17 issued in 2019 is set to expire on July 25, 2024. The draft PGP 17 proposed for re-issuance is provided as Attachment 2.

RGP 15: RGP 15, issued on May 16, 2019, authorizes discharges of dredged or fill material into waters of the U.S. under Section 404 associated with establishment, re-establishment, enhancement, or rehabilitation activities that would result in a net increase in aquatic resource functions and services. The Corps verifies a discharge under RGP 15 when, as the chair of the interagency review team (IRT), it approves a establishment, re-establishment, enhancement, or rehabilitation activity under the South Sacramento ILF Program (ILF program). The RGP eliminates the need for the ILF program sponsor to seek separate authorization from the Corps for activities approved by the Corps under the ILF program. RGP 15 reduces time and paperwork and improves efficiency for the Corps and ILF program sponsor for activities approved under the ILF program. The RGP 15 issued in July 2019 is set to expire on May 16, 2024. The draft RGP 15 proposed for re-issuance is provided as Attachment 3.

ADDITIONAL INFORMATION:

Background: In May 2019, the U.S. Fish and Wildlife Service (USFWS) approved the SSHCP through a federal ESA incidental take permit (ITP) under Section 10 of the ESA, issued to five SSHCP “Permittees” and the South Sacramento Conservation Agency (SSCA). The ITP was issued for a 50-year period (2019-2069). The SSHCP covers 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.

After completing its Record of Decision in July 2019, the Corps implemented a “404 Permit Strategy” aligned with the SSHCP that provides a “streamlined” approach to approving discharges of dredged or fill material into waters of the U.S. under Section 404. The 404 Permit Strategy encompasses a number of different permit types and processes deigned 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. The 404 Permit Strategy includes PGP 17, RGP 15, a procedure for issuing Letters of Permission (LOPs), and an abbreviated process for issuing standard permits. More information about the 404 Permit Strategy aligned with the SSHCP can be found on our website at: https://www.spk.usace.army.mil/Missions/Regulatory/Permitting/Endangered-Species-Agency-Consultations/Habitat-Conservation-Plans/

In its Record of Decision, the Corps indicated it would evaluate the appropriateness of the 404 Permit Strategy aligned with the SSHCP consistent with expiration dates, as applicable, and/or at minimum every five years, to determine appropriate implementation of the Permit Strategy across the SSHCP’s Incidental Take Permit term, and to determine whether additional analysis for compliance with NEPA and other applicable laws is required during the re-evaluation of the Permit Strategy.

Since the July 2019 implementation of the 404 Permit Strategy aligned with the SSHCP, to-date the Corps has verified 18 activities under PGP 17, no activities under RGP 15, seven activities under the SSHCP LOP Procedure, and no activities under the abbreviated standard permit process. The Corps’ evaluation of PGP 17 re-issuance will include an assessment of impacts to waters of the U.S. resulting from PGP 17 verifications from July 2019 through a time shortly before the proposed re-issuance of PGP 17. The Corps will also assess impacts to waters of the U.S. resulting from the SSHCP LOP Procedure, and any other authorizations under the SSHCP 404 Permit Strategy (e.g. RGP-15). The primary types of SSHCP covered activities authorized under PGP 17 and the SSHCP LOP from July 2019 to-date are residential development and infrastructure projects (utilities and transportation improvements), and mining projects.

Summary of Proposed Modifications to PGP 17 and RGP 15: The Corps is not proposing any substantive modifications to PGP 17 or RGP 15. The only changes would be minor, including reformatting to align with current practices and updated wording for increased clarity.

Evaluation of 404 Permit Strategy Aligned with the SSHCP: Aside from the proposed re-issuance of PGP 17 and RGP 15 with minor changes, no other modifications to the 404 Permit Strategy are proposed.

OTHER GOVERNMENTAL AUTHORIZATIONS: Water quality certification (WQC), or a waiver thereof, is required under Section 401 of the Clean Water Act from the California Regional Water Quality Control Board (Board), Central Valley Region. In accordance with 40 CFR § 121.10, the Corps is seeking written agreement from the Board, to modify the programmatic Clean Water Act Section 401 WQCs, WDID#5A34CR00759 and WDID#5A34CR00763 for PGP 17 and RGP 15, which were originally adopted by the Board, on April 5, 2019, and August 9, 2019, respectively. The proposed modifications would extend the authorization time frame for both WQCs.

HISTORIC PROPERTIES: Re-issuance of PGP 17 and RGP 15 would have no potential to affect cultural resources. The Corps will initiate consultation under Section 106 of the National Historic Preservation Act with the California State Historic Preservation Officer for any individual activities under evaluation for PGP 17 or RGP 15 that might have the potential to cause effects to a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places.

ENDANGERED SPECIES: Re-issuance of PGP 17 and RGP 15 would have no effect on federally listed threatened or endangered species. A programmatic biological opinion was issued by the USFWS that satisfies compliance with Section 7 of the ESA for the Corps’ authorization of activities under the 404 Permit Strategy. Individual activities that qualify for authorization under the RGP and PGP, follow the April 30, 2019, USFWS-issued Biological and Conference Opinion on The Fish and Wildlife Service Proposed Issuance of an Endangered Species Act Section 10(a)(1)(B) Permit for the South Sacramento Habitat Conservation Plan and The Army Corps of Engineers Proposed Authorization and Implementation of a Clean Water Act Section 404 Permit Strategy Aligned with the South Sacramento Habitat Conservation Plan (USFWS #81420-2008-F-1526-10) (Attachment 4). 

ESSENTIAL FISH HABITAT: Re-issuance of PGP 17 and RGP 15 would not adversely affect Essential Fish Habitat (EFH) as defined in the Magnuson-Stevens Fishery Conservation and Management Act. Authorization of activities under the PGP and RGP are not expected to adversely affect EFH. Should there be potential for activities to adversely affect EFH, 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 re-issue PGP 17 and RGP 15 will be based on an evaluation of the probable impacts, including cumulative impacts, of the covered activities 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 PGP 17 and RGP 15, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposed re-issuance of PGP 17 and RGP 15 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 re-issuance of PGP 17’s and RGP 15’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 PGP 17 and RGP 15. Any comments received will be considered by the Corps to determine whether to re-issue the PGP and RGP. 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.

SUBMITTING COMMENTS: Written comments, referencing Public Notice SPK-1995-00386 must be submitted to the office listed below on or before March 23, 2024.

Sara C. Cortez, Project Manager
US Army Corps of Engineers, Sacramento District
1325 J Street
Sacramento, CA 95814-2992
Email: sara.c.cortez@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 the re-issuance of PGP 17 and RGP 15. 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 Corps' project manager Sara Cortez, (916) 557-5154, sara.c.cortez@usace.army.mil.

Attachments:

1. South Sacramento Habitat Conservation Plan Area Map

2. PGP 17, Minimal Impact Activities Under the South Sacramento Habitat Conservation Plan (draft)

3. Draft RGP 15, Minimal Impact Activities Under the South Sacramento In-lieu Fee Program (draft)

4. The Biological and Conference Opinion on the USFWS Issuance of a Section 10(a)(1)(B) Permit for the South Sacramento Habitat Conservation Plan, Sacramento County, California, and the Biological and Conference Opinion on the USACE Authorization and Implementation of a Clean Water Act Section 404 Permit Strategy Aligned With the South Sacramento Habitat Conservation Plan