U.S. Army Corps Special Public Notice
of Engineers NAB-2019-00527 (BAY TMDL RGP-REISSUANCE)
PN 19-80 Comment Period: December 9, 2019 to January 18, 2020
The purpose of this notice is to inform interested parties of the proposed reissuance of the Bay Total Maximum Daily Load Regional General Permit (TMDL RGP) and to solicit comments on the proposed modifications that would be incorporated into a new Bay TMDL RGP. This Bay TMDL RGP 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 stratify other public interest review factors. Regional general permits are authorized for a five year period at which time they must be re-evaluated for their impacts on the aquatic environment. A copy of the proposed Bay TMDL RGP is attached and can be viewed on our web page at https://www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/.
In accordance with 33 CFR 325.5(c), the Bay TMDL RGP would authorize the various proposed activities described herein, pursuant to Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344). The Bay TMDL RGP went into effect on July 1, 2015 and will expire on June 30, 2020, unless a decision is made to suspend or revoke it by or before that date. A copy of the current version of the Bay TMDL RGP can be viewed on our web page at https://www.nab.usace.army.mil/Missions/Regulatory/Bay-TMDL/
LOCATION OF AUTHORIZED ACTIVITIES:
The Bay TMDL RGP applies to activities in nontidal waters of the United States, including nontidal wetlands in the Chesapeake Bay watershed within the State of Maryland, District of Columbia, and Fort Meyer, the Pentagon, and Fort Belvoir in Virginia.
EXCLUDED WATERS: Excluded waters include the Coastal Bays in Worcester County, Maryland, and the waters located in the Ohio River drainage in Western Maryland. Additional excluded waters of Maryland include adjacent and contiguous jurisdictional wetlands to 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 Road Bridge to the north. All these areas above are excluded as they are located within the regulatory geographic boundary of the Corps Philadelphia District.
PROPOSED NOTIABLE MODIFICATIONS:
The substantive proposed modifications consist of inclusion of activity-specific limits and requirements for stormwater management facilities, outfall structures, and stream and wetland restoration projects to reduce confusion over threshold and reporting requirements; minor changes to thresholds for individual activities and elimination of thresholds for temporary impacts, clarification of activities requiring Corps verification with agency coordination; and a requirement for post construction reporting for all activities.
The specific proposed modifications are as follows:
- Stormwater management Facilities
- Clarifies the activity specific limits for stormwater management facilities.
- Proposes overall threshold limits increases to 1 acres and/or 1,000 linear feet of streams for Self Verifying activities and 3 acres and/or 2,000 linear feet of stream for Corps Verifying activities.
- Retrofit and Stabilization of Outfalls:
- Overall threshold limit has decreased to 5,000 square feet and/or 200 linear feet.
- Provides clarification of the limits of an outfall project.
- Proposes inclusion of the use of piping/drop structures in certain areas.
- Proposes to eliminate the conversion of resources to uplands.
- Restoration Activities in Nontidal Streams and Wetlands:
- Proposes overall threshold limit increases to ½ acre and/or 1,000 linear feet of stream for Self Verifying activities and 3 acres and/or 5,000 linear feet of streams for Corps Verifying activities. No changes to the conversion thresholds for the overall activity are proposed.
- Provides functional assessment options to be completed as part of the pre and post site evaluation criteria to document degradation and function lift potential.
CORPS EVALUATION REQUIREMENTS:
The establishment of this RGP will be evaluated pursuant to Corps Regulatory Program Regulations (33 CFR Parts 320-332). The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonable 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, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, and consideration of property ownership and in general, the needs and welfare of the people. The evaluation of the impact of this RGP will also include application of the Clean Water Act Section 404(b)(1) Guidelines promulgated by the Administrator, U.S. Environmental Protection Agency.
ENDANGERED SPECIES: As the lead federal agency , and if appropriate, the Corps may initiate consultation under the Endangered Species Act on this programmatic general permit and any conditions from that consultation may be inserted into the Bay TMDL RGP. A preliminary review indicates that the proposed work will have no effect on Federally 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.
ESSENTIAL FISH HABITAT: The lead federal agency is responsible for Essential Fish Habitat coordination. The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), 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), including species of concern, life cycle habitat, or Habitat Areas of Particular Concern. The project site does not lie in or adjacent to EFH as described under MSFCMA for managed species under the MSFCMA. The Corps has made a preliminary determination that the project is not within EFH. This determination may be modified if additional information indicates otherwise. If appropriate, the Corps will be initiating consultation under these authorities on this regional general permit and any conditions from that consultation will be inserted into this Bay TMDL RGP.
The lead federal agency is responsible for historic resources coordination. Pursuant to Section 106 of the National Historic Preservation Act (NHPA) of 1966 and applicable guidance, 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 Bay TMDL RGP are not known and, therefore, the Corps cannot determine at this time whether any of the activities that would be authorized by the proposed Bay TMDL RGP may affect an historic property listed, or eligible for listing, in the National Register of Historic Places (NRHP). However, if issued, the proposed bay TMDL RGP 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 State Historic Preservation Office on this regional general permit and any conditions from that consultation to protect historic properties will be inserted into the Bay TMDL RGP. Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the request permit.
TRIBAL RESOURCES: Section 106 of the NHPA also requires federal agencies to consult with federally-recognized American Indian tribes that attach religious and cultural significance to historic properties that may be affected by the agency’s undertaking. The lead federal agency is responsible for tribal coordination. Corps Tribal Consultation Policy mandates an open, timely, meaningful, collaborative, and effective deliberative communication process that emphasizes trust, respect, and shared responsibility. The policy further emphasizes that, to the extent practicable and permitted by law, consultation works toward mutual consensus and begins at the earliest planning stages, before decisions are made and actions taken. The Corps final eligibility and effect determination will be based on coordination with interested tribes, in accordance with the Corps current tribal standard operating procedures as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on tribal resources.
MODIFICATION OF CIVIL WORKS PROJECTS: 33 USC 408 (SECTION 408): All Section 408 proposals will be coordinated internally at the Corps. The Section 408 decision will be issued along with the Section 404 decision. Please see the following link for more information regarding Section 408: https://www.nab.usace.army.mil/section408/.
WATER QUALITY CERTIFICATION: The Corps is required to obtain a water quality certification (WQC) in accordance with Section 401 of the Clean Water Act from Maryland Department of the Environment, District Department of the Environment and Energy, and Virginia Department of Environmental Quality prior to issuance of the Bay TMDL RGP. By this public notice, the Corps is requesting the Maryland Department of the Environment, District Department of the Environment and Energy, and Virginia Department of Environmental Quality to determine whether to issue, deny, to waive water quality Water Quality Verification for this regional general permit. Any written comments concerning the proposed Bay TMDL RGP which relate to WQC must be received by the appropriate agencies within the comment period as specified as above. In Maryland 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. In the District of Columbia water quality certification must be received by the District Department of the Environment and Energy, 1200 First Street N.E. 5th Floor, Washington, DC 20002. In Virginia the WQC must be sent to the Department of Environmental Quality P.O. Box 1105, Richmond, Virginia 23218. The Section 401 certifying agency has a statutory limit of sixty (60) days to make its decision.
COASTAL ZONE MANAGEMENT PROGRAMS: Where applicable, the Corps has certified in this application that the proposed activity complies with and will be conducted in a manner consistent with the approved Coastal Zone Management (CZM) Program. By this public notice, we are requesting the State concurrence or objection to the applicant’s consistency statement. Any written comments concerning the proposed Bay TMDL RGP which relate to CZM must be received by the appropriate agencies within the comment period as specified as above. In Maryland 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. In Virginia the CZM must be sent to the Coastal Zone Management Program, Department of Environmental Quality P.O. Box 1105, Richmond, Virginia 23218.
SUBMISSION OF COMMENTS: 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 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 and are subject to release to the public through the Freedom of Information Act. 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 U.S. Army Corps of Engineers, Baltimore District within the comment period specified above through postal mail at the address below or electronic submission to the project manager email address below. Written comments should reference the Application Number 2019-00527.
PUBLIC HEARING REQUESTS: Any person who has an interest which may be adversely affected by the issuance of this permit may request a public hearing. The request, which must be in writing, must be received within the comment period as specified above to receive consideration. Also it must clearly set forth the interest which may be adversely affected by this activity and the manner in which the interest may be adversely affected. The public hearing request may be submitted by electronic mail or mailed to the following address:
U.S. Army Corps of Engineers, Baltimore District
2 Hopkins Plaza
Baltimore, Maryland 21201
It is requested that you communicate this information concerning the proposed work to any persons known by you to be interested, who did not receive a copy of this notice.
General information regarding the Corps’ permitting process can be found on our website at https://www.nab.usace.army.mil/Missions/Regulatory.aspx. This public notice has been prepared in accordance with Corps implementing regulations at 33 CFR 325.3. If you have any questions concerning this specific project, or would like to request a paper copy of this public notice, please contact (Ms. Erica Schmidt, (410) 962-6029; Erica.Schmidt@usace.army.mil). This public notice is issued by the Chief, Regulatory Branch.