Home > Missions > Regulatory > Public Notices > Public Notice View
Bookmark and Share Email Print


SPN16-05 Maryland State Programmatic General Permit - 5

Posted: 1/22/2016

Expiration date: 3/7/2016


                                     Public Notice                                               

U.S. Army Corps                                                                                                      

of Engineers                                                               

Baltimore District                                                      Date:  January 22, 2016       

ATTN:  CENAB-OPR-M                                           Comment Period Ends:  March 7, 2016

P.O. Box 1715                                                         Action ID:  NAB-2016-00055

Baltimore, MD 21203-1715                                      Special Public Notice #16-05

                                     

SUBJECT:  The U.S. Army Corps of Engineers, Baltimore District, is proposing to reissue with modifications, the Maryland State Programmatic General Permit-4 (MDSPGP-4) as the Maryland State Programmatic General Permit-5 (MDSPGP-5) for a five year period. 

The purpose of this notice is to inform interested parties of the proposed reissuance of the MDSPGP-5 and to solicit comments on the proposed modifications that would be incorporated into a new MDSPGP-5.  A copy of the proposed MDSPGP-5 is attached and can be viewed on our web page at http://www.nab.usace.army.mil/Missions/Regulatory/PublicNotices.aspx.

The MDSPGP-4 went into effect on October 1, 2011 and will expire on September 30, 2016, unless a decision is made to suspend or revoke it by or before that date.  A copy of the current version of the MDSPGP-4 can be viewed on our web page at http://www.nab.usace.army.mil/Portals/63/docs/Regulatory/Permits/MDSPGP-4.pdf.   

 

In accordance with 33 CFR 325.5(c), MDSPGP-5 would authorize the various proposed activities described herein, pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and/or Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344).      

On March 19, 2012, the Baltimore District issued Special Public Notice (SPN) #12-32 announcing the suspension of specific 2012 Nationwide Permits (NWPs) in Maryland that are duplicated by the MDSPGP-4.  The proposed modified MDSPGP-5 is designed to continue to authorize certain activities formerly covered by the NWP program.  A copy of SPN #12-32 can be viewed on our web page at http://www.nab.usace.army.mil/Portals/63/docs/Regulatory/PN/SPN%2012-32.pdf.

The 2012 NWPs can be viewed on the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/missions/civilworks/regulatoryprogramandpermits/nationwidepermits.aspx.

LOCATION OF AUTHORIZED ACTIVITIES:  This MDSPGP-5 applies to activities in waters of the United States, including wetlands and navigable waters, within the State of Maryland. 

EXCLUDED WATERS:   Back Creek (of the Chesapeake and Delaware Canal), east of a line extending from Welch Point to Courthouse Point to the Delaware line and to the Second Street Bridge to the south; Herring Creek east of the line extending from Welch Point to Courthouse Point to the dam that crosses Herring Creek; and Long Branch to the Boat Yard Bridge to the north, including adjacent and contiguous jurisdictional wetlands to these tidal tributaries are excluded from the authority of this MDSPGP-5.  These listed areas fall within the U.S. Army Corps of Engineers Philadelphia District’s Regulatory geographic boundaries.    

PURPOSE:  The modified MDSPGP-5 is proposed to provide a streamlined form of Department of the Army authorization for certain recurring activities that are similar in nature, have minimal individual and cumulative adverse effects on the aquatic environment, and satisfy other public interest review factors.    The State of Maryland’s Tidal Wetlands Protection Act, Nontidal Wetlands Protection Act, and Waterway Construction Act establish a State-wide permit program for protecting Maryland’s aquatic resources.  Maryland’s procedures for the granting of permits and licenses require Maryland Department of the Environment (MDE) to apply evaluation criteria consisting of alternatives analyses (for nonwater dependent activities), avoidance techniques, the minimization of impacts, and if a permit is to be granted, compensatory mitigation for wetland impacts. The evaluative criteria within Maryland’s programs are similar to Federal criteria under Section 404(b)(1) of the Federal Clean Water Act.  If the MDSPGP-4 is reissued as MDSPGP-5, the Baltimore District Engineer will reevaluate the MDSPGP-5 within five years to determine if activities have been authorized in accordance with the requirements of the MDSPGP-5.  Programmatic general permits are authorized for a five-year period at which time they must be re-evaluated for their impacts on the aquatic environment.    

PROPOSED NOTABLE MODIFICATIONS TO THE MDSPGP-5:   

The substantive proposed modifications consist of inclusion of temporary construction impacts into the description and thresholds for several activities to reduce the need to use multiple MDSPGP-5 activities for a single and complete project (activity stacking); an increase to the maximum total (temporary and permanent) acreage impact threshold for Category A of Activity b(1), General Maintenance activity; the addition of two new activities for culvert pipe grouting and stormwater management activities; elimination of Activity e(6), Special Area Management Plan (SAMP) Study Area Projects, and the clarification of definitions and compensatory mitigation within the MDSPGP-5.  Please note that the information in the attached proposed draft MDSPGP-5 is accurate; however, any glitches in formatting will be corrected in the final version.

 

The specific proposed modifications are as follows:

1.      II.E. pages 5 through 6. Category B Activities Requiring Application Submittal:  Revised wording for clarification. The webpage address to view the Baltimore District Minimum Setback Guidance for Structures Along Federally Authorized Channels was updated.

2.      III. Pages 6 through 7. Procedures: Clarified when compensatory mitigation will be required for wetland and stream losses.

 

3.      IV. Pages 11 through 12. MDSPGP-5 Categories Index:  Two new activities have been added (Culvert Pipe Grouting/ Sealing and Joint Repairs and Stormwater Management Facilities).   Activity b (3) is revised to Bulkhead Repair or Replacement, including Stone Toe Protection. Activity f (3) is revised to New Bulkheads, including Stone Toe Protection.  Activity h is revised to Private Landowner Oyster Gardening.

 

4.      IV.B. 1 a.(3). Pages 12 through 16. Piers:  A condition was added to require that any floating structure (i.e., pier, finger pier, auxiliary structure, jet-ski platform, etc.) must include stoppers/blocks on the structure or pilings to prevent the structure from sitting on the bottom of the waterway during low water conditions. Conditions were added that projects within the minimum extended property line setback requirements established by the local jurisdiction in which the activity is proposed may be authorized if a county variance is received and that an alternative Corps permit review is required for piers proposed within the minimum extended property line setback requirements that have not received a county variance. Clarifications were made to the timeframe for removal of construction mats.

Category A:  The Category A activity was revised to include 4-foot wide parallel walkways adjacent to existing or proposed bulkheads within canals. The impact threshold for floating structures was increased to 300 square feet. The total number of allowed slips was increased to 6 slips including four boat lifts or slips and two personal water craft lifts. A condition was added that piers must not extend more than 25% the width of the waterway channelward of the mean high water shoreline and/or vegetated wetlands or further channelward than the neighboring piers ( within a quarter mile of the proposed project site along the same shoreline) whichever is less.  A condition was added that finger piers or platforms must be constructed in a minimum depth of 2 feet or open water at mean low water.

Category B:  Conditions were revised to clarify that the total number of slips includes both boat lifts and personal water craft lifts.

5.      IV.B.1.a.(4). Pages 16 through 17. Marina/Community Piers Reconfiguration: The activity description has been modified to allow for construction of a finger pier at an existing, previously authorized boat slip and, under Category B, construction of new boat slips within the existing marina/community pier footprint. The use of any new floating structure (i.e., pier, finger pier, auxiliary structure, personal water craft platform, etc.) must include stoppers/blocks on the structure or pilings to prevent the structure from sitting on the bottom of the waterway during low water conditions.

Category A:  Conditions were added that Category A does not authorize additional slips or dock spaces and that this activity authorizes the construction of boat lifts within existing, authorized boat slips.

Category B:  Conditions were added that finger piers and/or cat walks must not exceed three feet in width. Conditions were added that this activity authorizes a maximum of one finger pier per boat slip and that finger piers must be constructed a minimum of 3 feet above mean low water level. This activity does not authorize enclosed buildings or other structures.  Enclosed buildings or other structures that impact waters of the United States must be reviewed under alternate Corps permit review procedures, as appropriate.

6.      IV.B.1.a.(5). Pages 17 through 18. Boat Ramp Construction, Repair, and Expansion: This activity authorizes the construction of structures such as wing walls and access piers. Authorization of the boat ramp and associated piers is based upon current water depths; propeller dredging is not authorized.  Added that this activity authorizes a maximum of two access piers associated with the boat ramp. Access piers must not exceed 3 feet in width and must be constructed a minimum of 3 feet above the mean low water level. Access piers must be directly abutting the boat ramp and must not extend more than a distance of 25% of the width of the waterway, channelward of the mean high water shoreline and/or vegetated tidal wetlands or the minimum necessary to provide adequate access to the boat ramp, whichever is less.

Category A:  No changes proposed.

Category B:  Added that all boat ramps and associated discharges must be designed to eliminate or minimize impacts to special aquatic sites, to include wetlands.

 

7.      IV.B.1.a(10). Pages 21 through 22. New Minor Dredging in Tidal Waters.  Added “total” to clarify that the total dredged area and volume is the activity-specific threshold.  Added “state” to the listing of government-affiliated watershed dredging projects that are not authorized by this activity.

Category A:  Added “total” to clarify that the total dredged area and volume is the activity-specific threshold.

Category B:  No changes proposed.

8.   IV.B.1.b.(1). Pages 22 through 26. General Maintenance:  Conditions were added to clarify that the activity includes the removal of material from the stream bed and that the authorized work must not impede the movement of anadromous or resident fish. Conditions were added to require temporary impacts to be minimized to the maximum extent practicable and that pre-construction conditions, including contours, elevations, stream substrate, and native plant species, must be restored upon completion of the work.  Clarification was added that any new bank stabilization measures that were not included in the previously authorized structure or fill will require a separate authorization from the Corps. Clarification was added that any new bank stabilization measures that were not included in the previously authorized structure or fill will require a separate authorization from the Corps.

 

Category A:  Increased total (temporary and permanent) acreage threshold to one acre. 

Category B:  A requirement was added that the application must include the original design capacities and configurations of the proposed structure and fills.

 

9.   IV.B.1.b.(2). pages 26 through 27. Armoring Bridges, Causeways, and Culverts: The activity description was revised to include temporary structures, work, and discharges of dredged or fill material associated with construction access. Conditions were added to clarify that the activity must not impede the movement of anadromous or resident fish. Conditions were added to require temporary impacts to be minimized to the maximum extent practicable and that pre-construction conditions, including contours, elevations, stream substrate, and native plant species, must be restored upon completion of the work.

 

10. IV.B.1.b.(3). Pages 27 through 28. Bulkhead Repair or Replacement, including Stone Toe Protection: Added the placement of stone toe protection along existing or replacement bulkheads. Any stone used for toe protection must be clean and free of toxins.

Category A:  The bulkhead repair or replacement, when using wood or corrugated sheeting, must not extend more than 18 inches channelward of the existing structure as measured from the channelward edge of the existing bulkhead piling to the inner-most face of the proposed bulkhead sheeting. Stone toe protection placed along the base of a replacement or existing bulkhead must not extend more than 10 feet channelward of the bulkhead or the minimum necessary to provide adequate stabilization.

Category B:  The bulkhead repair or replacement, regardless of materials used, must not extend more than 3 feet channelward of the existing structure, as measured from the channelward face of the existing bulkhead piling to the inner-most face of the proposed bulkhead sheeting. If corrugated materials are used, then the measurement is from the channelward face of the existing sheeting to the channelward face of the outer-most corrugation. Stone toe protection placed along the base of a replacement or existing bulkhead must not extend more than 10 feet channelward of the bulkhead or the minimum necessary to provide adequate stabilization. 

11.   IV.B.1.b.(4). Pages 29 through 30. Maintenance of Tidal Roadside Ditches:  The activity description was revised to clarify that include temporary structures, work, and discharges of dredged or fill material associated with construction access and that the disposal of dredged material into wetlands and waters of the United States is not authorized. Conditions were added to clarify that the activity must not impede the movement of anadromous or resident fish. Conditions were added to require temporary impacts to be minimized to the maximum extent practicable and that pre-construction conditions, including contours, elevations, stream substrate, and native plant species, must be restored upon completion of the work.

12.   IV.B.1.b.(5). Pages 30 through 31. Maintenance of Mosquito Control Ditches:  The activity description was revised to include temporary structures, work, and discharges of dredged or fill material associated with construction access. Conditions were added to clarify that the activity must not impede the movement of anadromous or resident fish. Conditions were added to require temporary impacts to be minimized to the maximum extent practicable and that pre-construction conditions, including contours, elevations, stream substrate, and native plant species, must be restored upon completion of the work.

 

13.   IV.B.2.b.(6) Pages 31 through 32. Culvert Pipe Grouting/Sealing and Joint Repairs: This activity authorizes the discharge of grout paving material associated with repairs to degraded pipe and box culverts. This activity also authorizes temporary structures, work, and discharges of dredged or fill material necessary for associated construction activities or repairs, including but not limited to stream diversion devices, access fills, structures and/or fills for dewatering of construction sites, and placement of construction matting.

Category A: Total permanent and temporary impacts to streams is limited to 10,000 square feet or 1,000 linear feet of streams.

Category B: Total permanent and temporary impacts to streams is limited to ½ acre (21.780 square feet) or 2,000 linear feet of streams.

14.   IV.B.1.c. Page 32. Underground and Overhead Utility Lines:  The activity description was revised to clarify that the activity includes facilities associated with utility lines.

15.   IV.B.1.c.(1). Pages 33 through 35. Utility Lines: The activity description was revised to include outfalls and intake structures associated with utility lines and to clarify that pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances over navigable waters of the United States are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard. Clarified language describing independent utility.

Category A:  Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899 or tidal wetlands is not authorized under Category A and must be reviewed under Category B or alternative Corps review procedures. Clarified that diagonal crossings of utility lines can be authorized in instances where the existing on site conditions would require a diagonal crossing of the waterway. Clarified restriction requirements for limit-of disturbance.

Category B:  Conditions were added that aerial electric power transmission lines crossing navigable waters must follow the minimum clearances listed in the General conditions. A condition was added that application for overhead utility lines will be provided to the Department of Defense Siting Clearinghouse by the Corps. A condition was added to require that as-built drawings depicting the utility line alignment of aerial transmission lines, submerged cables, or submerged pipelines by submitted to the Corps and the National Oceanic and Atmospheric Administration Nautical Data Branch within 60 days of completion of the work.

 

16.   IV.B.1.c.(2). Pages 35 through 37. Foundations for Overhead Utility Line Towers, Poles, and Anchors:  Conditions were added to clarify that utility line project should be routed outside of or on the edges of wetlands and forested tracts where possible.

Category A:  Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899 or tidal wetlands is not authorized under Category A and must be reviewed under Category B or alternative Corps review procedures.

Category B:  A condition was added to require that a copy of the application and permit verification for any proposed work in navigable waters must be sent to the National Oceanic and Atmospheric Association by the Corps. A condition was added that all aerial electric power transmission lines crossing navigable waters of the United Stated must follow the minimum clearances identified in the General Conditions.

17.   IV.B.1.c.(3). Pages 37 through 42. Utility Access Roads:  A condition was added to require that access roads should be routed outside of or on the edge of wetlands and forested tracts where practicable.  A condition was added that utility line access roads installed below the plane of the ordinary high water mark of any stream or waterway must be constructed under dry conditions, using stream diversions other than earthen or stone cofferdams.

Category A: :  Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899, tidal wetlands, or nontidal wetlands adjacent to tidal waters is not authorized under Category A and must be reviewed under Category B or alternative Corps review procedures.  Clarified restriction requirements for limit-of disturbance.

Category B:  No proposed changes.

18.   IV.B.1.d. Pages 40 through 42. Linear Transportation Activities:  The activity description was revised to clarify that some discharges for the construction of farm roads, forest roads, or temporary roads for moving mining equipment may qualify for an exemption under Section 404 (f) of the Clean Water Act.

 

Category A:   Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899, tidal wetlands, or nontidal wetlands adjacent to tidal wetlands is not authorized under Category A and must be reviewed under Category B or alternative Corps review procedures.

Category B:  Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899, tidal wetlands, or nontidal wetlands adjacent to tidal wetlands is not authorized under Category A and must be reviewed under Category B or alternative Corps review procedures. A condition was added to require that a copy of the application and permit verification for any proposed work in navigable waters must be sent to the National Oceanic and Atmospheric Association by the Corps. Revised the language to clarify that the regional fishery agency is the National Marine Fisheries Service, Habitat Conservation Division.

19.   IV.B.1.e.(1). Page 43. Minor Nontidal Fills:   Revised language of conditions for clarity. Clarified that this activity does not authorize weirs.

20.   IV.B.1.e.(2). Pages 43 through 44. Agricultural Activities:  The activity description was revised to clarify that some discharges for agricultural activities may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4) and that this activity may authorize regulated agricultural activities that do not qualify for an exemption.

Category A:  Clarified that this activity applies to nontidal waters of the United States only.

Category B:  No proposed changes.

21.   IV.b.1.e.(3). Pages 45 through 46. Soil Investigations, Scientific Measurement Devices, and Survey Activities: The activity description was revised to include authorized survey activities, including sample plots or transects for wetland delineations. Language was added to clarify that this activity does not authorize any permanent structures. Conditions were revised to authorize discharges and structures associated with the recovery of historic resources.

Category A:  A condition was added to clarify that Category A does not authorize discharges and structures associated with the recovery of historic resources and that Category B review or alternative Corps permit review procedures would be required.

Category B: No proposed changes.

22.   IV.B.1.e.(4). Page 46. Dry Fire Hydrants:  The condition stating that stream relocation using natural stream design is considered to be self-mitigating was removed.

23.   IV.B.1.e.(5). Pages 47 through 48. Clearing Debris and Windfalls:  The activity description was revised to include temporary structures, work, and discharges of dredged or fill material associated with construction access. Conditions were added to clarify that the activity must not impede the movement of anadromous or resident fish. Conditions were added to require temporary impacts to be minimized to the maximum extent practicable and that pre-construction conditions, including contours, elevations, stream substrate, and native plant species, must be restored upon completion of the work. Conditions clarified that this activity authorizes temporary access roads but does not authorize permanent access roads.

Category A:  Clarified language regarding temporary impacts.

Category B:  Clarified language regarding temporary impacts.

24.   IV.B.1.e.(6). Special Area Management Plan (SAMP) Study Area Projects: SAMP Study Area Projects was removed from the MDSPGP-5.

25.   IV.B.1.e.(7). Pages 48 through 49. Temporary Construction, Access, Stream Diversions and Dewatering for Construction:  The activity description was revised to note that certain appropriate individual activities of this MDSPGP-5 include the authorization of these temporary construction impacts.

      Category A:  Conditions were revised to clarify that and diverted stream from the start to the endpoint of the diversion is considered to be temporarily impacted and a note was added to see the Definitions section. Clarified that discharges into tidal wetlands and waters associated with temporary causeways, approach fills (except for construction mats), and cofferdams are not authorized under.

      Category B:  Revised language for clarification. A condition was added that this activity does not authorize structures or fill left in place after construction is completed.

26.   IV.B.e.(8). Page 49. Outfall Structures and Associated Intake Structures:  Language was added to clarify that stream relocation using natural stream design is generally considered to be self-mitigating.

27.   IV.B.1.e.(9). Pages 49 through 53. Residential, Commercial, and Institutional Development Activities:  The activity description was revised to identify examples of institutional developments. A condition was added that documentation regarding minimization of impacts must be provided by the applicant if crossing options other than the preferred crossing options such as a bridge or bottomless arch are proposed. A condition was added that the application and permit verification for any regulated activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line must be provided to the Department of Defense Siting Clearinghouse to evaluate potential effects on military activities.

Category A:  Clarified that utility line crossing may make a diagonal crossing of the waterway in instances where the existing on site conditions would not allow for a perpendicular crossing. Clarified that work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899, tidal wetlands, or nontidal wetlands adjacent to tidal wetlands is not authorized under Category A.

Category B:  No proposed changes.

28.   IV.B.1.e.(10) Pages 53 to 54. Stormwater Management Facilities: This new activity is proposed to provide for the authorization of discharges or dredged or fill material for the construction of new stormwater management facilities, water control structures, outfall structures and emergency spillways, and new Low Impact Development (LID) integrated management features into nontidal waters of the United States, including jurisdictional wetlands.  This activity does not authorize work in any tidal waters, tidal wetlands, non-tidal wetlands located adjacent to tidal waters, perennial streams or in Use III (Native Trout) or Use IV (Stocked Trout) intermittent streams. 

 

Category A: Clarified that Category A does not authorize  work in applicable nontidal navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899,  and that Category B review or alternative permit review procedures would be required. Clarified requirements for limit of disturbance.

Category B: The total temporary (i.e., construction impacts including stream diversion devices, etc.) and permanent impacts to nontidal waters of the United States,  including nontidal wetlands, streams, rivers, and other nontidal open waters, are not to exceed 10,000 square feet and/or 500 linear feet of streams, rivers, and other nontidal open waters.

29.   IV.B.f . Page 54. Shoreline and Stream Bank Stabilization Activities: The preference order for nontidal stream bank stabilization methods and the requirement for written documentation to support the preferred stabilization method was moved from this section to  the description under Activity f(4) Nontidal Bank Stabilization Activities.

 

30.   IV.B.f.(1). Pages 54 through 56. New Tidal Revetments and Tidal Shoreline Erosion Control Structures other than Revetments:  This activity was revised to eliminate Stone Toe Protection for New or Existing Bulkheads. A condition was added that all stone must be clean and free of toxins.

Category A:  Conditions were revised to provide clarification. A condition was added that allows for new tidal groins to extend up to 25 feet channelward of the mean high water shoreline and that groins must be constructed with vents/windows or as a low-profile structure to minimize impacts to littoral drift.

Category B:  Conditions were revised to provide clarification. A condition was added that allows for new tidal groins to extend up to 50 feet channelward of the mean high water shoreline and must be constructed with vents/windows or as a low-profile structure.

31.   IV.B.1.f.(2). Pages 56 through 58. Tidal Marsh Creation / Beach Nourishment:  The activity description was revised to clarify that this activity would include the construction of associated protection structures. Additional types of associated protection structures, including wave screens, small geo-tubes, and coir logs were identified.  Structures used to protect tidal marsh creation areas (i.e., living shorelines) should follow an order of preference that utilizes a small impact footprint. The activity description was revised to allow tidal marsh creation/beach nourishment adjacent to marsh. A condition was added that free-standing wave screens should be designed with an appropriate spacing between slats and a minimum elevation of 12 inches off the bottom of the waterway.  The spacing between slats and distance off the bottom of the waterway should be evaluated taking into consideration the wave energy of the project site.

Category A:  The conditions were revised to allow tidal marsh creation/beach nourishment adjacent to marsh. Conditions were revised to provide clarification.

        Category B:  Clarification that project must be located in unvegetated shallow waters was added.  Condition was removed indicating compensatory mitigation for impacts to vegetated wetlands shall be required because this activity does not allow for impacts to vegetated wetlands.  Conditions were revised to provide clarification.

32.   IV.B.1.f.(3). Pages 59 through 60. New Bulkheads, Including Stone Toe Protection:  The activity was renamed and text was added to the activity description to include the placement of stone toe protection for the purpose of erosion protection. A condition was added that required stone used for toe protection to be clean and free of toxins.

      Category A:  A condition was added that stone toe protection placed along the base of a new bulkhead must not extend more than 10 feet channelward of the bulkhead face or the minimum necessary to provide adequate stabilization.

      Category B:  A condition was added that stone toe protection placed along the base of a new bulkhead must not extend more than 10 feet channelward of the bulkhead face or the minimum necessary to provide adequate stabilization.

33.   IV.B.1.f.(4). Pages 60 through 61. Nontidal Bank Stabilization Activities:  The activity description was revised to clarify that the purpose of authorized activities would be stream bank erosion protection.  The preference order for nontidal stream bank stabilization methods and a requirement for written documentation to support the preferred stabilization method was moved to this specific activity from the general shoreline and streambank stabilization activities heading. A condition was revised to include that stream piping is not authorized by this activity. A condition was added that invasive plants species shall not be used for bioengineering or vegetative bank stabilization. Conditions were revised for clarification.

 

34.   IV.B.1.g. Page 61. Return Water from Upland Contained Disposal Areas: The activity description was revised to indicate that dredging activities may require a Section 404 permit and will require a Section 10 permit if located in navigable waters of the United States.

 

35.   IV.B.1.h. Pages 61 through 62. Private Landowner Oyster Gardening:  The activity was renamed “Private Landowner Oyster Gardening” to clarify that this activity is not associated with commercial oyster aquaculture. The activity was modified to include cages placed on the bottom substrate. The impact threshold for Category A and B activities was increased to 500 square feet. A condition was added that requires the applicant to submit a Private Aid to Navigation application to the U.S. Coast Guard if the permittee wishes to mark the project. The total number of shellfish possessed by the riparian owner was increased from 3,000 to 25,000.

36.   IV.B.2.a.(1). Page 63. Activities in or Near Federal Navigation Projects: The condition was revised to remove the clarification that a Federal Navigation Project is considered to be a Federally authorized Civil Works project.

37.   V. Pages 64 through 71. Definitions:   New definitions have been provided for “Discharge of Fill Material/Pilings” and “Federally Authorized Civil Works Project”. A revision was made to the definition of “Loss of Waters of the United States” to clarify that for the purposes of the MDSPGP-5, the acreage of loss is used for determining whether compensatory mitigation may be required.

 

38.   VII.A.1. Page 71. Other Permits: A revision to this condition clarified that authorization under the MDSPGP-5 does not obviate the need to comply with all Federal, state, or local laws.

 

39.   VII.A.3. Page 71. Applicability: A revision to this condition clarified that applicable supplemental guidance issued by the Corps of Engineers must be used to identify and delineate wetland boundaries.

 

40.   VII.A.4. Page 72. Minimal Effects: A revision to this conditions clarified that project authorized by the MDSPGP-5 shall have no more than minimal individual and cumulative adverse environmental effects, as determined by the Corps.

 

41.   VII.A.6. Page 72. Single and Complete Projects: A revision to this condition clarified that the same activity under the MDSPGP-5 cannot be used more than once for the same single and complete project.

 

42.   VII.B.1. Page 74. Historic Properties:  Condition added stating that upon discovery of previously unknown historic, cultural, or archeological resources or remains, the permittee must immediately notify the Corps and avoid construction activities that may affect the resources or remains.  The Corps will conclude all tribal coordination in accordance with the District’s tribal coordination procedures prior to verifying an activity is authorized by the MDSPGP-5.

.

43.   VII.B.4. Page 74. Endangered Species: A revision to this condition clarified the contact information to contact the Fish and Wildlife Service and National Marine Fishery Service.

 

44.   VII.B.12. Page 77. Migratory Birds and Bald and Golden Eagles: A condition was added that the permittee is responsible for obtaining any “take” permits required under the FWS’s regulations governing compliance with the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act.

 

45.   VII.B.13. Page 77. Environmental Justice: A condition was added that activities authorized under this MDPSGP-5 must comply with Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”

 

46.   VII.B.14. Page 77. Hazardous Wildlife Attractants On or Near Airports:  A condition was added that effects to aviation safety and projects must be designed to not create a wildlife hazard.

 

47.   VII.B.15. Page 77. Water Quality Certification: A condition was added to address the requirement for Water Quality Certification from the Maryland Department of the Environment. The Corps is coordinating with the Maryland Department of the Environment and has requested their determination whether to issue, deny, or waive Water Quality Certification for the MDSPGP-5.

 

48.   VII.B.16. Page 77. Coastal Zone Consistency (CZM): A condition was added requesting CZM determination from the Maryland Department of the Environment.

 

49.   VII.C.1. Page 77. Avoidance and Minimization: A revision has been made to this condition to clarify that both temporary and permanent adverse impacts must be avoided and minimized. Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating for resource losses) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal.

 

50.   VII.C.2. Pages 78 through 79. Mitigation Standards: This condition was revised to clarify factors considered by the Corps when determining mitigation necessary to ensure that adverse effects on the aquatic environment are minimal. The revisions clarified that mitigation will generally be required at a one-to-one ratio for all permanent tidal and nontidal losses that exceed 5,000 square feet and for permanent impacts to streams and other open waters that exceed 200 linear feet, unless the Corps determines that some other type of mitigation is appropriate or the Corps grants a project-specific mitigation waiver. All compensatory mitigation must comply with the applicable provisions of 33 CFR Part 332. The condition was also revised to clarify the required information for permittee-responsible mitigation and mitigation through a mitigation bank or in-lieu fee program. The revisions clarify that compensatory mitigation will not be used to increase the impact thresholds allowed by the acreage limits of the MDSPGP-5.

 

51.   VII.C.9. Page 80. Spawning Areas: A revision has been made that the National Marine Fisheries Service or Fish and Wildlife Service would assist the Corps in determining whether an activity would result in the physical destruction of an important spawning/nursery area.

 

52.   VII.D.6. Page 82. Modification, Suspension and Revocation: A clarification has been added to this condition stating that the Corps will issue a public notice announcing any changes to the MDSPGP-5 when they occur.

 

53.   VIII.B.2. Page 83. Previously Authorized Activities:  A revision has been made to this condition which requires that, if work authorized under the MDSPGP-4 cannot be completed within 12 months from the expiration date of the MDSPGP-4, the project must receive written reauthorization from the Corps under the MDSPGP-5 or alternate Corps permit review procedures.

FEDERAL EVALUATION:  The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts of the proposed MDSPGP-5 on the public interest.  That decision will reflect the national concern for both protection and utilization of important resources.  The benefits, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments.  All factors, which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economic, 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, considerations of property ownership and, in general, the needs and welfare of the people. 

The Corps of Engineers 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 MDSPGP-5.  Any comments received will be considered by the Corps of Engineers 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, cultural resources, essential fish habitat (EFH), water quality, general environmental effects, and the 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 provided will become part of the public record for this action.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.  Written comments concerning the work described above related to the factors listed above or other pertinent factors must be received by the District Engineer, U.S. Army Corps of Engineers, Baltimore District (ATTN: CENAB-OP-R), P.O. Box 1715, Baltimore, Maryland 21203-1715 within the comment period specified above.

The applicant must obtain any State or local government permits which are required.

The evaluation of the impact of this MDSPGP-5 on the public interest will include application of the Section 404(b)(1) guidelines promulgated by the Administrator, U.S. Environmental Protection Agency, under authority of Section 404 of the Clean Water Act. 

ENDANGERED SPECIES:  The Endangered Species Act of 1973 (ESA), as amended, requires all Federal agencies to consult with the National Marine Fisheries Service (NMFS)/National Oceanic Atmospheric Administration (NOAA) and/or U.S. Fish and Wildlife Service (FWS), pursuant to Section 7 of the ESA, on any action, or proposed action, permitted, funded, or undertaken by the agency that may affect a species listed as threatened or endangered under the ESA, or its designated critical habitat.  The Corps will be initiating consultation under the Endangered Species Act on this programmatic general permit and any conditions from that consultation will be inserted into the MDSPGP-5.  A preliminary review indicates that the proposed activities will not affect Federal listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended.  As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.

CULTURAL RESOURCES:  Activities authorized by this MDSPGP-5 must comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA).  Historic properties include prehistoric and historic archeological sites, and areas or structures of cultural interest.  The locations of activities that might be authorized by the proposed MDSPGP-5 are not known and, therefore, the Baltimore District cannot determine at this time whether any of the activities that would be authorized by the proposed MDSPGP-5 may affect an historic property listed, or eligible for listing, in the National Register of Historic Places (NRHP).  However, if issued, the proposed MDSPGP-5 would not authorize any activity that may affect historic properties listed, or eligible for listing, in the NRHP until the requirements of Section 106 of the NHPA have been satisfied.  The Corps will be coordinating with the Maryland State Historic Preservation Office on this programmatic general permit and any conditions from that consultation to protect historic properties will be inserted into the MDSPGP-5.  Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the request permit.  To ensure compliance with Executive Order 13175, the MDSPGP-5 is conditioned such that the Corps will coordinate with Tribal Nations.  Coordination shall be performed in accordance with the Baltimore District’s tribal coordination procedures.

ESSENTIAL FISH HABITAT AND FISH AND WILDLIFE COORDINATION ACT:  The Magnuson-Stevens Fishery Conservation and Management Act (MSA), as amended by the Sustainable Fisheries Act of 1996 (Public Law 04-267), requires all Federal agencies to consult with the National Marine Fisheries Service (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH).  A preliminary review of the proposed MDSPGP-5 indicates that it complies with the provisions of the MSA, as amended.  The Baltimore District has determined that the adverse effects of the MDSPGP-5 on EFH for Federally managed species would not be substantial and an expanded consultation will be conducted with NMFS.  This consultation will also accommodate non-EFH species pursuant to the Fish and Wildlife Coordination Act.  The Baltimore District will be initiating consultation under these authorities on this programmatic general permit, which includes the submission of a detailed EFH assessment to NMFS, and any conditions from that consultation to protect National Oceanic and Atmospheric Administration (NOAA) trust resources will be inserted into the MDSPGP-5.    

WATER QUALITY CERTIFICATION:  Water Quality Certification is required in accordance with Section 401 of the Clean Water Act from the Maryland Department of the Environment prior to the issuance of the MDSPGP-5.  By this public notice, the Corps is requesting the Maryland Department of the Environment determine whether to issue, deny, or waive Water Quality Certification for this programmatic general permit.  Any written comments concerning the proposed MDSPGP-5 which relate to water quality certification must be received by the Wetlands and Waterways Program, Maryland Department of the Environment, Montgomery Park Business Center, 1800 Washington Boulevard, Suite 430, Baltimore, Maryland 21230-1708 within the comment period as specified above to receive consideration.  The Section 401 certifying agency has a statutory limit of one year to make its decision.

COASTAL ZONE MANAGEMENT PROGRAMS:  By this public notice, we are requesting that the Maryland Department of the Environment determine whether to issue, deny, or waive Coastal Zone Management (CZM) Consistency for this programmatic general permit.   Any written comments concerning the proposed MDSPGP-5 which relate to CZM consistency must be received by the Wetlands and Waterways Program, Maryland Department of the Environment, Montgomery Park Business Center, 1800 Washington Boulevard, Suite 430, Baltimore, Maryland 21230-1708 within the comment period as specified above to receive consideration.   It should be noted that the CZM Program has a statutory limit of 6 months to make its consistency determination.

PUBLIC HEARING: The secondary purpose of this 30-day Public Notice is to announce that a public hearing is scheduled for Wednesday, February 24, 2016 at 5:30 p.m. in the meeting room of the Severna Park Branch of the Anne Arundel County Public Library, 35 W McKinsey Road, Severna Park, MD 21146. Directions and other information for the Severna Park Branch can be found at http://www.aacpl.net/location/severnapark. The purpose of the hearing is for the Baltimore District to receive oral or written comments concerning the proposed modifications to the MDSPGP-4. All interested parties, including representatives of Federal, State, and local governments and private individuals and organizations, are invited to be present or to be represented. Each will be given an opportunity to express their views regarding the proposed MDSPGP-5.

HEARING COMMENTS: The official public hearing record will remain open until the close of business on Monday, March 7, 2016 for submission of written comments and information by interested parties to the Baltimore District. The District’s mailing address is U.S. Army Corps of Engineers, Baltimore District (ATTN: CENAB-OP-R), P.O. Box 1715, Baltimore, Maryland 21203-1715.

It is requested that you communicate this information concerning the proposed revised MDSPGP-5 to any persons known by you to be interested and not being known to this office, who did not receive a copy of this notice.

COMMENTS:  Written comments on this MDSPGP-5 must reference Special Public Notice #16-05 and be addressed to the District Engineer, U.S. Army Corps of Engineers, Baltimore District (ATTN: CENAB-OPR), Baltimore, Maryland 21203-1715.  Comments must be received by the close of business on March 7, 2016.   If you have any questions concerning this matter, please contact Ms. Beth E. Bachur of this office at 410-962-4336 or email at beth.bachur@usace.army.mil.

                                                                        WILLIAM P. SEIB

                                                                        Chief, Regulatory Branch

baltimore district Corps of Engineers Maryland Maryland State Programmatic General Permit MDSPGP-5 permit public comment USACE