Published Sept. 3, 2020

                    Public Notice                   

U.S. Army Corps            Special Public Notice

of Engineers                   NAB-2019-00527 (BAY TMDL RGP-REISSUANCE)
Baltimore District                     

Special PN 20-59             Date: 3 Sep 2020 

SUBJECT:  Issuance of the Chesapeake Bay Total Maximum Daily Load Regional General Permit (Bay TMDL RGP) for a five year period

The purpose of this special public notice is to inform you the Baltimore District, U.S. Army Corps of Engineers is re-issuing the Chesapeake Bay Total Maximum Daily Load Regional General Permit (TMDL RGP) with revisions authorizing activities in waters of the U.S., including jurisdictional wetlands, that are part of an acceptable watershed strategy, such as a Chesapeake Bay TMDL Watershed Implementation Plan (WIP), whose purpose is to identify implementation activities needed to meet nutrient and sediment load reduction targets in accordance with the Chesapeake Bay TMDL.  For a full description of the types of activities authorized by the TMDL RGP, the applicable waters, and the permit conditions, please see the attached TMDL RGP.

In accordance with 33 CFR 325.5(c), the TMDL RGP authorizes the work described herein, pursuant to Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344).  Applicable waters include nontidal waters and nontidal wetlands in the Chesapeake Bay watershed within the State of Maryland, the District of Columbia, Fort Belvoir, Fort Myer, and the Pentagon in Virginia. 

All activities eligible for authorization under the TMDL RGP must meet all terms and eligibility criteria, limitations, and general conditions specified in the TMDL RGP.  Activities that do not comply with the provisions of the TMDL RGP may require authorization under an alternative permit type (e.g., State Programmatic General Permit, Nationwide Permit, or Individual Permit).

The TMDL RGP provides 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.  A copy of the TMDL RGP is attached and may also be found on the Baltimore District Regulatory website at: http://www.nab.usace.army.mil/Missions/Regulatory.aspx

The TMDL RGP is effective as of September 1, 2020.  The TMDL RGP will expire on August 31, 2025 unless suspended or revoked.

On December 9, 2019, the Baltimore District issued Special Public Notice #19-80, requesting comments on whether to issue, for a 5-year period, the proposed draft TMDL RGP. Following a thorough review of all comments received in response to the special public notice, the Corps has decided to re-issue the TMDL RGP. The decision to re-issue the TMDL RGP was made after a thorough evaluation of the probable impacts, including cumulative impacts, of the proposed TMDL RGP on the public interest. This decision reflects the national concern for the protection and utilization of important resources. The benefits which reasonably may be expected to accrue from the proposal were balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal were considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural resources, fish and wildlife resources, flood hazards, floodplain functions, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, and, in general, the needs and welfare of the people.

The December 9, 2019 draft TMDL RGP included several proposed revisions to the TMDL RGP including renaming the Bay TMDL RGP the TMDL RGP.  After evaluating the comments received in response to December 9, 2019 draft TMDL RGP, we decided to include the proposed revisions to the TMDL RGP to further clarify the permit, general conditions, and definitions; facilitate its administration; and strengthen environmental protection. 

The substantive modifications adopted into this re-issued TMDL RGP consist of:

  1. 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;
  2. Minor changes to thresholds for individual activities and elimination of thresholds for temporary impacts;
  3. Clarification of activities requiring Corps verification with agency coordination and restoration of temporary impacts; and
  4. Requirements for post-construction reporting for all activities.

Further specific modifications are as follows:

  1. Stormwater management Facilities
    1. Clarifies the activity specific limits for stormwater management facilities.
    2. Increases overall threshold limits 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.
  2. Retrofit and Stabilization of Outfalls:
    1. Overall threshold limit has decreased to 5,000 square feet and/or 200 linear feet.
    2. Clarifies the limits of an outfall project.
    3. Includes of the use of piping/drop structures in certain areas.
    4. Eliminates the conversion of resources to uplands.
  3. Restoration Activities in Nontidal Streams and Wetlands:
    1. Increases overall threshold limit 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.
    2. Provides functional assessment options to be completed as part of the pre and post site evaluation criteria to document degradation and function lift potential.

The District of Columbia Department of Energy and Environment has denied Water Quality Certification; therefore, applicants must obtain individual WQC prior to initiating any activities within the District of Columbia.  The Maryland Department of the Environment (MDE) and Virginia Department of Environmental Quality (VADEQ) has certified compliance of the activities authorized by TMDL RGP, individually and cumulatively, with the State’s Clean Water Act Section 401 water quality standards provided the applicant obtains all necessary State permits and approvals.  The Corps, State or District may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal temporary degradation of water quality.

The Corps has determined all activities authorized by the TMDL RGP will be carried out in a manner consistent with the enforceable policies of the Maryland Coastal Zone Management Program and the Virginia Coastal Zone Management Program pursuant to Section 307 of the Federal Coastal Zone Management Act of 1972, as amended.  MDE and VADEQ have concurred with the Corps’ determination provided the applicant obtains all necessary State permits and approvals.  The Corps or State may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements.

The applicant must submit a permit application for any activity that may affect U.S Fish and Wildlife Service federally listed or proposed threatened, endangered species, and designated or proposed critical habitat. The TMDL RGP is conditioned to ensure all authorized activities will not affect listed species or their critical habitat pursuant to Section 7 of the Endangered Species Act as amended. The Baltimore District has determined that no additional coordination is required for National Marine Fisheries Services’ (NMFS) pursuant to Section 7 of the Endangered Species Act as amended because the TMDL RGP does not authorize activities within waters that may affect species or habitat.

The applicant must submit a permit application for any activity that has the potential to cause effects to historic properties listed, determined to be eligible for listing in, or potentially eligible for listing in the National Register of Historic Places, including previously unidentified properties. The TMDL RGP is conditioned to ensure all authorized activities must comply with the requirements of Section 106 of the National Historic Preservation Act.    

The Baltimore District has determined in consultation with the NMFS there are no effects of this TMDL RGP on Essential Fish Habitat (EFH) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act as amended.

It is requested you communicate the foregoing information 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.

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 the TMDL RGP, or would like to request a paper copy of this public notice, please contact Ms. Erica Schmidt at Erica.Schmidt@usace.army.mil or U.S. Army Corps of Engineers, Baltimore District, Regulatory Branch, 2 Hopkins Plaza, Baltimore, Maryland 21201-2930.  This public notice is issued by the Chief, Regulatory Branch.