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NWP-2007-1005-1

Posted: 7/8/2015

Expiration date: 8/7/2015


Public Notice
Proposal to Reauthorize Regional General Permit 5 for Discharges into Vernal Pool Wetlands in Jackson County, Oregon


Issue Date:  July 8, 2015

Expiration Date:  August 7, 2015

Corps of Engineers No:  NWP-2007-1005-1

For additional information contact:
Ms. Judy Linton, Regulatory Project Manager
Portland District, Regulatory Branch                
Telephone:  (503) 808-4382      
judy.l.linton@usace.army.mil                


The U.S. Army Corps of Engineers, Portland District (Corps) proposes to reissue Regional General Permit 5 (RGP-5) for a five year period.  RGP-5 authorizes the general public to place fill material into waters of the United States (U.S.) within the Agate Desert region of Jackson County, Oregon, pursuant to Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344).  Specifically, RGP-5 (see attached) authorizes the loss of up to 2 acres of vernal pool wetlands or other waters, or 15 acres of vernal pool complex (whichever is less) from a single and complete project.  No changes to the amount of authorized impacts are proposed.

The Corps is requesting public comment on the proposal to reauthorize RGP-5 as well as the specific requirements of the RGP (e.g. performance standards, mitigation and monitoring requirements, etc.).  Do you think the Corps should consider making changes to any of these requirements?  In the event RGP-5 is reauthorized for another five years, the Corps will consider suspending the use of certain nationwide permits in the Agate Desert Region of Jackson County to avoid duplication and confusion on the use of a regional general permit versus nationwide permit.  As required by 33 CFR 330.5(c)(1), the public will be given a separate opportunity to provide input on any proposal to geographically suspend certain nationwide permits.

RGP-5 was developed through the collaboration of an inter-agency team representing the U.S. Army Corps of Engineers (Corps), U.S. Fish and Wildlife Service (USFWS), Environmental Protection Agency, and Oregon Department of State Lands (DSL).  The intent is to streamline the regulatory requirements of the Clean Water Act (CWA), Oregon’s Removal/Fill Law (R-F Law), and the Endangered Species Act (ESA), while improving conservation of vernal pool habitat complexes and associated plant and animal species.

The Corps’s jurisdictional determination is subject to a site and project specific analysis and the regulations in effect at the time of the evaluation.

WATER QUALITY CERTIFICATION 

On March 12, 2012, the Oregon Department of Environmental Quality (DEQ) certified, with conditions, that the current RGP-5 will be consistent with applicable provisions of the Clean Water Act, state water quality standards, and other appropriate requirements of state law provided the certification conditions are incorporated into the federal permit and followed by the permittees.  This certification expires January 25, 2016.

Portland District is requesting DEQ to reissue certification of RGP-5 under Section 401 of the Clean Water Act.  DEQ’s public notice advertising the request for certification is attached.

ENDANGERED SPECIES 

On January 26, 2011, the U.S. Fish and Wildlife Service (USFWS) signed a programmatic biological opinion under Section 7 of the Endangered Species Act (ESA) for RGP-5.  This opinion is titled Programmatic Formal Consultation on the U.S. Fish and Wildlife Service’s Vernal Pool Conservation Strategy for Jackson County, Oregon (USFWS file #13420-2011-F-0064, dated January 26, 2011).  The opinion is valid for five years or until 110 acres of vernal pool wetlands (or up to 550 acres of vernal pool complex) are affected by development actions and associated mitigation actions, whichever occurs first.  To date, 10.24 acres of vernal pool wetland impacts (138.72 acres of vernal pool complex) have been covered by the opinion.  The Corps has started discussions with USFWS regarding the compliance of the proposed general permit with the ESA.

The Corps will also be determining the potential for projects authorized by RGP-5 to affect the National Marine Fisheries Service trust species and will enter into consultation as appropriate.

CULTURAL RESOURCES

All project-specific Pre-construction Notifications (PCN) requesting Department of the Army authorization under RGP-5 will be evaluated under Section 106 of the National Historic Preservation Act and coordinated with those Native American Tribes that have an interest in the area in which the proposed action would occur. 

PCNs will be reviewed by the Regulatory Branch archeologist to determine whether the project may be located on property registered or eligible for registration in the latest published version of the National Register of Historic Places and to make an initial Section 106 effects determination.  If there is not enough information available in the project file to make a determination, the applicant will be requested to provide additional information.  SHPO notification will be done according to current Regulatory Branch protocols and agreements based on the project-specific effects determination.

Notifications will be provided electronically to the Tribes with a request to provide information on whether the proposed project would impact such things as cultural resources, treaty fishing access sites, usual and accustomed areas, burial sites, or Traditional Cultural Properties.

If information is received from the SHPO, tribes or other interested parties which indicates that the site of the proposed action may affect human burials, cultural resources or historic properties (as identified by the Federal historic preservation laws), the Corps will take actions needed to comply with Federal cultural resources and historic preservation laws and regulations.

EVALUATION 

The decision whether to reissue RGP-5 will be based on an evaluation of the probable impacts including cumulative impacts of the described 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 the described activities must be balanced against their reasonably foreseeable detriments.  All factors, which may be relevant to the described activities 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 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 identify the public interest factors that may be affected and evaluate the potential impacts of the activities that would be eligible for authorization under this proposed RGP.  All comments received will be considered by the Corps of Engineers in its decision on whether to reissue RGP-5.  Comments will be considered in the preparation of an Environmental Assessment pursuant to the National Environmental Policy Act.  Comments will also be used to determine the need for a public hearing and to determine the overall public interest of the proposed activities.

The evaluation of the likely impact of the proposed RGP on the public interest will include application of the guidelines promulgated by the Administrator, Environmental Protection Agency, under authority of Section 404(b) of the Clean Water Act.  This evaluation will include an alternatives analysis.

Information regarding the Corps’ provisional determination that the proposed activities comply with the requirements for issuance of general permits is available at the Portland District office (see contact information above).

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 proposal.  Requests for a public hearing shall specifically state the reasons for holding the hearing.  The Corps holds public hearings for the purpose of obtaining public comments, when that is the best means for understanding a wide variety of concerns from a diverse segment of the public.

COMMENTS

Comments on the proposed reissuance of RGP-5 should reference the U.S. Army Corps of Engineers number NWP-2007-01005/1 and should reach this office no later than August 7, 2015, to become part of the record and to be considered in the decision.  Comments should be mailed to the following address:

U.S. Army Corps of Engineers, Portland District
ATTN:  CENWP-OP-G (Judy Linton)
P.O. Box 2946
Portland, Oregon  97208-2946

Comments may also be sent by email to: judy.l.linton@usace.army.mil.

Attachment:  RGP-5 issued November 26, 2012

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