PUBLIC NOTICE
Proposal to Reissue Regional General Permit 6, With Modifications, for Bonneville Power Administration-Funded Habitat Improvement Projects within the Columbia River Basin in Oregon
Issue Date: March 7, 2023
Expiration Date: April 6, 2023
U.S. Army Corps of Engineers No: NWP-2011-127-2
30-Day Notice
Interested parties are hereby notified that, in accordance with 33 CFR 325.3(b), the U.S. Army Corps of Engineers, Portland District (Corps) proposes to reissue, with modifications, Regional General Permit (RGP) 6 to authorize Bonneville Power Administration (BPA)-funded habitat improvement projects within the Columbia River Basin in Oregon. The Corps is soliciting comments on the attached draft RGP 6.
Background: An RGP is a type of general Department of the Army permit issued on a regional basis to authorize a category or categories of activities that are substantially similar in nature and cause only minimal individual and cumulative environmental impacts. RGP 6 would facilitate the authorization of BPA-funded habitat improvement projects within the Columbia River Basin in Oregon. BPA funds these projects in fulfillment of its obligations under the Northwest Power and Conservation Council’s Columbia River Basin Fish and Wildlife Program and the various biological opinions issued to BPA under Section 7(a)(2) of the Endangered Species Act. When funding a project, BPA serves as the lead federal agency for completing the consultation requirements of the Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act and the National Historic Preservation Act. When evaluating applications for authorization by RGP 6 the Corps would review BPA’s documentation to ensure the consultation requirements of these laws was completed for the proposed project.
A general permit may be valid for no more than five years. The Portland District first issued RGP 6 in 2011 and reissued RGP 6 in 2018. The current RGP 6 expires on
July 31, 2023, and is available for review on the Corps’ website (https://www.nwp.usace.army.mil/Missions/Regulatory/Nationwide/). On average,
RGP 6 is used to authorize 11 BPA-funded habitat improvement projects per year. The Corps estimates a reissued RGP 6 would authorize 55 projects over the five-year term of the RGP.
Location: This RGP would authorize activities in waters of the United States as defined in 33 CFR Part 328 and in navigable waters of the United States as defined in 33 CFR Part 329 located within the Columbia River Basin in Oregon. See Appendix 2 in the attached draft RGP 6, which illustrates the RGP area boundary.
RGP 6 Activities: This RGP would authorize work and the discharge of dredged or fill material into waters of the United States for habitat improvement projects provided the activities result in a net gain in aquatic resource functions and services. This RGP would also authorize temporary structures, fills, and work necessary to conduct the authorized activity. Categories of habitat improvement projects that would be authorized by this RGP, to the extent that Department of the Army authorization is required, include the following: fish passage restoration; river, stream, floodplain, and wetland restoration; invasive plant control; piling removal; road and trail erosion control, maintenance, and decommissioning; irrigation and water delivery/management actions; and habitat, hydrologic, and geomorphologic surveys.
Mitigation: Compensatory mitigation would not be required for activities authorized by this RGP since these activities must result in net increases in aquatic resource functions and services.
Authority: The Portland District proposes to reissue RGP 6, with modifications, in accordance with 33 CFR § 325.2(e)(2), to authorize certain activities in or affecting waters of the United States, including navigable waters of the United States, pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 USC § 403) and Section 404 of the Clean Water Act (33 USC § 1344).
Clean Water Act Section 404(b)(1) Guidelines: The discharges that would be authorized by this RGP will be evaluated for compliance with guidelines promulgated by the U.S. Environmental Protection Agency under authority of Section 404(b)(1) of the Clean Water Act. The Section 404(b)(1) Guidelines are the substantive criteria used in evaluating discharges of dredged or fill material into waters of the United States.
Water Quality Certification: Section 401 of the Clean Water Act (33 USC § 1341) requires a water quality certification for any permit that authorizes an activity that may result in a discharge. The certifying authorities for discharges within the area for this RGP are the Oregon Department of Environmental Quality, the U.S. Environmental Protection Agency, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Confederated Tribes of the Umatilla Indian Reservation. The Corps has requested water quality certification for this RGP from each of these certifying authorities.
Coastal Zone Management: Section 307(c) of the Coastal Zone Management Act of 1972, as amended (16 USC § 1456(c), requires non-Federal applicants seeking a federal license or permit to conduct any activity occurring in or affecting the coastal zone to conform with the State’s Coastal Zone Management Program. The Corps believes activities that would be authorized by this RGP would comply with and be conducted in a manner consistent with the Oregon Coastal Zone Management Program. The Corps has requested concurrence from the Oregon Department of Land Conservation and Development with the Corps’ consistency determination for this RGP.
Endangered Species: Section 7 of the Endangered Species Act (ESA) (16 USC §1536) requires federal agencies to consult with the National Marine Fisheries Service (NMFS) and/or U.S. Fish and Wildlife Service (USFWS) on all actions that may affect a species listed (or proposed for listing) under the ESA as threatened or endangered or that may adversely modify designated critical habitat. For activities that would be authorized by this RGP, the BPA, as the lead Federal agency for ESA consultation, would consult with the NMFS and/or the USFWS as required under Section 7 of the ESA. The BPA may demonstrate compliance with the ESA for a proposed activity through a programmatic or individual consultation with the NMFS and/or USFWS.
Essential Fish Habitat: Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) as amended (16 USC § 1855), requires Federal agencies to consult with the NMFS on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat. For activities that would be authorized by this RGP, the BPA, as the lead Federal agency for MSA consultation, would consult with the NMFS as required under Section 305(b)(2) of the MSA. The BPA may demonstrate compliance with the MSA for a proposed activity through a programmatic or individual consultation with the NMFS.
Historic Properties/Cultural Resources: Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (16 USC § 470), requires Federal agencies to consult with the appropriate State and/or Tribal Historic Preservation Officer to take into account the effects of actions they undertake or permit on historic properties listed in or eligible for listing in the National Register of Historic Places. For activities that would be authorized by this RGP, the BPA, as the lead Federal agency for NHPA consultation, would consult with the appropriate State and/or Tribal Historic Preservation Officer. The BPA may demonstrate compliance with the NHPA for a proposed activity through a programmatic or individual consultation.
This notice has been provided to the Oregon State Historic Preservation Office, interested Native American Tribes, and other interested parties. If you have comments on proposed RGP conditions that may apply to historic properties/cultural resources, please provide these comments to assist in the Corps’ evaluation of this RGP.
Additional Information: The Corps’ provisional determination that the proposed activities comply with the requirements for issuance of a general permit is available from the Corps. The enclosed draft RGP 6 would require prospective permittees to submit pre-construction notification to the Corps and the prospective permittee shall not begin the activity until notified in writing by the Corps that the activity may proceed under the RGP with any project-specific special conditions imposed by the Corps.
State, Local and Other Authorizations: As described in the draft RGP, this RGP would not obviate the need for the prospective permittee to obtain other federal, state, or local permits, approvals, or authorizations required by law for a proposed activity.
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 RGP. Requests for public hearings shall state with particularity the reasons for holding a public hearing.
Evaluation: The decision whether to reissue RGP 6, with modifications, will be based on an evaluation of the probable impact, 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 proposal 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 is soliciting comments from the public; Federal, state, and local agencies and officials; Native American Tribes; and other interested parties in order to consider and evaluate the impacts of the proposal to reissue RGP 6. Any comments received will be considered by the Corps. 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 are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.
Submitting Comments: Interested parties are invited to provide comments on the proposal to reissue RGP 6, the RGP 6 conditions, or the addition of other conditions that may be necessary to ensure that the activities authorized by RGP 6 would authorize only those activities that have no more than minimal adverse environmental effects. Comments may be submitted by conventional mail or email. All comments received will be considered in determining whether reissuing RGP 6 would be contrary to the public interest.
Either conventional mail or e-mail comments must include the Corps reference number as shown on page 1 and include the commenter’s name and address. In order to be accepted, e-mail comments must originate from the author’s e-mail account and must include on the subject line of the e-mail message the Corps reference number. All comments received will become part of the administrative record and are subject to public release under the Freedom of Information Act including any personally identifiable information such as names, phone numbers, and addresses.
Additional information about RGP 6 may be obtained from the Corps Project Manager listed below. All comments, whether by conventional mail or email, must be received no later than the expiration date of this public notice to ensure consideration. Comments should be submitted to the following mailing address or email address:
U.S. Army Corps of Engineers
Regulatory Branch
Mr. Joe Brock
P.O. Box 2946
Portland, Oregon 97208-2946
Email: joseph.w.brock@usace.army.mil
Telephone: (503) 808-4377
DEPARTMENT OF THE ARMY
Regional General Permit 6 For Bonneville Power Administration-Funded Habitat Improvement Projects Within the Columbia River Basin in Oregon
Permit Number: NWP-2011-127-2
Expiration Date: DATE
Effective Date: DATE
Regional General Permit (RGP) Title: RGP 6, Bonneville Power Administration-Funded Habitat Improvement Projects Within the Columbia River Basin in Oregon
Issuing Office: U.S. Army Corps of Engineers (Corps), Portland District, Regulatory Branch, P.O. Box 2946, Portland, OR 97208-2946
Authority: In accordance with 33 CFR § 325.2(e)(2), the Portland District has issued this RGP which authorizes certain activities in or affecting waters of the United States, including navigable waters of the United States, pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 USC § 403) and Section 404 of the Clean Water Act
(33 USC § 1344).
Purpose: The purpose of this RGP is to streamline the authorization process for habitat improvement projects that are funded by the Bonneville Power Administration (BPA). This RGP contains provisions intended to protect the environment, endangered species, historic properties, and to ensure activities authorized by this RGP would be substantially similar in nature and cause no more than minimal individual and cumulative adverse environmental effects. Work that will not comply with these provisions is not authorized by this RGP and may require Department of the Army authorization by an individual permit. Moreover, compliance with the provisions of this RGP does not itself guarantee that the work would be authorized under this RGP.
Location of Authorized Activities: This RGP is applicable in waters of the United States as defined in 33 CFR Part 328 and in navigable waters of the United States as defined in 33 CFR Part 329 located within the Columbia River Basin in Oregon. See the RGP 6 area boundary map at Appendix 2.
Activities Authorized by this RGP: (a) This RGP authorizes work and the discharge of dredged or fill material into waters of the United States for habitat improvement projects provided the activities result in a net gain in aquatic resource functions and services.
(b) This RGP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the authorized activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges of dredged or fill material, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. After conducting the authorized activity, temporary structures, fills, and work must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
(c) Categories of habitat improvement projects authorized by this RGP, to the extent that Department of the Army authorization is required, include the following:
1. Fish Passage Restoration (Profile Discontinuities and Transportation Infrastructure)
- Dams, Water Control, or Legacy Structure Removal
- Consolidate or Replace Existing Irrigation Diversions
- Headcut and Grade Stabilization
- Low Flow Consolidation
- Providing Fish Passage at an Existing Facility
- Bridge and Culvert Removal or Replacement
- Bridge and Culvert Maintenance
- Installation of Fords
2. River, Stream, Floodplain, and Wetland Restoration
- Improve Secondary Channel and Floodplain Connectivity
- Set-back or Removal of Existing, Berms, Dikes, and Levees
- Protect Streambanks Using Bioengineering Methods
- Install Habitat-Forming Instream Structures (Large Wood, Small Wood & Boulders)
- Riparian Vegetation Planting
- Channel Reconstruction
- Install Habitat-Forming Materials (Sediment and Gravel)
3. Invasive Plant Control
- Manage Vegetation using Physical Controls
- Not applicable to RGP. Category number reserved (i.e., Manage Vegetation using Herbicides (River System)).
- Not applicable to RGP. Category number reserved (i.e., Manage Vegetation using Herbicides (Estuarine System)).
- Juniper Removal
- Prescribed Burning
4. Piling Removal (Includes piling removal by extraction or cutting and filling holes left by each piling with clean, native sediment.)
5. Road and Trail Erosion Control, Maintenance, and Decommissioning
- Maintenance of Roads
- Decommission Roads
6. Not Applicable to RGP. Category number reserved (i.e., In-Channel Nutrient Enhancement).
7. Irrigation and Water Delivery/Management Actions
- Convert Delivery System to Drip or Sprinkler Irrigation
- Convert Water Conveyance from Open Ditch to Pipeline or Line Leaking Ditches or Canals
- Convert from Instream Diversions to Groundwater Wells for Primary Water Sources
- Install or Replace Return Flow Cooling Systems
- Install Irrigation Water Siphon Beneath Waterway
- Livestock Watering Facilities
- Install New or Upgrade/Maintain Existing Fish Exclusion Devices and Bypass Systems
8. Habitat, Hydrologic, and Geomorphologic Surveys (Includes work, structures or discharges of dredged or fill material for information collection).
9. Not Applicable to RGP. Category number reserved (i.e., Special Actions for Terrestrial Species, Categories 9a-9e).
RGP GENERAL CONDITIONS: To qualify for RGP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any case-specific special conditions imposed by the district engineer. Compensatory mitigation is not required for activities authorized by this RGP since these activities must result in net increases in aquatic resource functions and services. For activities authorized by this RGP, the BPA is the lead federal agency for complying with the requirements of Section 7 of the Endangered Species Act, Section 305 of the Magnuson-Stevens Fishery Conservation and Management Act, Section 106 of the National Historic Preservation Act and Section 7 of the Wild and Scenic Rivers Act. BPA will also consult, as applicable, with Native American Tribes to ensure that no activity or its operation will impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. Prospective permittees should contact the Corps if questions arise regarding compliance with any of the terms and conditions of this RGP or if there are questions about whether a specific activity is exempt from requiring a permit or is outside of the Corps’ jurisdiction.
1. Pre-Construction Notification. (a) Timing. The prospective permittee must notify the district engineer by submitting a pre-construction notification (PCN) as early as possible. If the PCN is incomplete, the district engineer will request additional information necessary to make the PCN complete. In addition to the information for a complete PCN, the district engineer may request other information necessary to evaluate a proposed activity. The prospective permittee shall not begin the activity until notified in writing by the district engineer that the activity may proceed under the RGP with any special conditions imposed by the district engineer;
(b) Contents of Pre-Construction Notification: The PCN must be in writing and include the following information:
(1) Name, address, email, and telephone number of the prospective permittee;
(2) Location of the proposed activity;
(3) (i) A complete description of the proposed activity including category of habitat improvement project, any structures and the amount and type of discharges of dredged of fill material; the area (acreage) of waters of the United States to be affected; scheduling of the activity; and the activity’s purpose;
(ii) Identify any other Department of the Army permits (Nationwide Permits, Regional General Permits, or Individual Permits) used or intended to be used to authorize any part of the proposed project or any related activity;
(iii) Project drawings to show that the activity complies with the terms and conditions of this RGP. Project drawings (i.e., vicinity map, plans view, section views) should contain sufficient detail to provide an illustrative description of the proposed activity, but do not need to be detailed engineering plans;
(4) The PCN must include an inventory of wetlands and their classification
(e.g., emergent, forested), other special aquatic sites, and other waters, such as tidal waters, lakes, ponds, and streams, on the project site and the approximate boundary (e.g., ordinary high water mark, mean high water, high tide line) of these features must be illustrated on the project drawings.
(5) The PCN must include documentation from the BPA demonstrating compliance with the Endangered Species Act (ESA) for the proposed activity (see General
Condition 19). Documentation may be the BPA’s rationale for a “no effect” determination or documentation of completion of ESA Section 7 consultation for a “may affect” determination. The district engineer will verify that the appropriate documentation has been submitted.
(6) The PCN must include documentation from the BPA demonstrating compliance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) for essential fish habitat (see General Condition 20). Documentation may be the BPA’s rationale for a “no adverse affect” determination or documentation of completion of MSA Section 305 consultation for an “adverse affect” determination. The district engineer will verify that the appropriate documentation has been submitted.
(7) The PCN must include documentation from the BPA demonstrating compliance with the National Historic Preservation Act (NHPA) for the proposed activity (see General Condition 22). Documentation may be the BPA’s rationale for a “no potential to cause effect” determination or documentation of completion of NHPA Section 106 consultation. The district engineer will verify that the appropriate documentation has been submitted.
(8) For an activity that will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the PCN must identify the Wild and Scenic River or the “study river” and include documentation from BPA demonstrating compliance with Section 7 of the Wild and Scenic Rivers Act (see General Condition 17). The district engineer will verify that the appropriate documentation has been submitted.
(9) For an activity that requires permission from, or review by, the Corps pursuant to 33 USC § 408 because it will alter or temporarily or permanently occupy or use a
U.S. Army Corps of Engineers federally authorized civil works project, the PCN must include a statement confirming that the project proponent has submitted a written request for Section 408 permission from, or review by, the Corps office having jurisdiction over that Corps project (see General Condition 28).
(10) The PCN must include documentation from the BPA regarding completion of coordination and/or consultation with Native American Tribes for the proposed activity to include the names of tribes notified, the date coordination was initiated, tribal concerns raised (if any), and resolution if concerns were raised.
(c) Form of Pre-Construction Notification: The contents of the PCN may be provided in a Joint Permit Application form or Engineer Form 4345. The PCN and all related information should be submitted electronically.
2. Navigation. (a) No activity may cause more than a minimal adverse effect on navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee’s expense on authorized facilities in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his or her authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the U.S. Army Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.
3. Aquatic Life Movements. No activity may substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the area, unless the activity’s primary purpose is to impound water. All permanent and temporary crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If a bottomless culvert cannot be used, then the crossing should be designed and constructed to minimize adverse effects to aquatic life movements.
4. Spawning Areas. Activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area are not authorized by this RGP.
5. Migratory Bird Breeding Areas. Activities in waters of the United States that serve as breeding areas for migratory birds must be avoided to the maximum extent practicable.
6. Shellfish Beds. No activity may occur in areas of concentrated shellfish populations, unless the activity is a shellfish seeding or habitat restoration activity authorized by this RGP.
7. Suitable Material. No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material used for construction or discharged must be free from toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act).
8. Water Supply Intakes. No activity may occur in the proximity of a public water supply intake.
9. Adverse Effects from Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable.
10. Management of Water Flows. To the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters must be maintained for each activity, including stream channelization, storm water management activities, and temporary and permanent road crossings, except as provided below. The activity must be constructed to withstand expected high flows. The activity must not restrict or impede the passage of normal or high flows, unless the primary purpose of the activity is to impound water or manage high flows. The activity may alter the pre-construction course, condition, capacity, and location of open waters if it benefits the aquatic environment and results in a net gain in aquatic resource functions and services (e.g., steam restoration activities).
11. Fills Within 100-Year Floodplains. The activity must comply with applicable Federal Emergency Management Agency-approved state or local floodplain management requirements.
12. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance.
13. Soil Erosion and Sediment Controls. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed soil and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low-flow or no-flow, or during low tides.
14. Removal of Temporary Structures and Fills. Temporary structures must be removed, to the maximum extent practicable, after their use has been discontinued. Temporary fills in waters of the United States shall not exceed six months unless approved by the district engineer. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The affected areas must be revegetated, as appropriate.
15. Proper Maintenance. Any authorized structure or fill shall be properly maintained, including maintenance to ensure public safety and compliance with applicable RGP general conditions, as well as any activity-specific conditions added by the district engineer to the RGP authorization.
16. Single and Complete Project. The activity must be a single and complete project. Single and complete project means the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. A single and complete project must have independent utility. Independent utility means a test to determine what constitutes a single and complete project. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility.
17. Wild and Scenic Rivers. (a) No activity may occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, unless the appropriate federal agency with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation or study status.
(b) Information on Wild and Scenic Rivers may be obtained from the appropriate federal land management agency responsible for the designated Wild and Scenic River or study river (e.g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). Information on these rivers is also available at: http://www.rivers.gov/.
18. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights.
19. Endangered Species. (a) No activity is authorized under this RGP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify designated critical habitat or critical habitat proposed for such designation. No activity is authorized under this RGP which “may affect” a listed species or critical habitat, unless ESA Section 7 consultation addressing the consequences of the proposed activity on listed species or critical habitat has been completed.
(b) The BPA should follow its own procedures for complying with the requirements of the ESA. BPA may demonstrate compliance with the ESA for a proposed activity through a programmatic or individual consultation with the National Marine Fisheries Service and/or U.S. Fish and Wildlife Service.
(c) Based on the BPA’s consultation with the NMFS and/or USFWS, the district engineer may add special conditions to the authorization of activities under this RGP.
(d) Authorization of an activity by this RGP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the NMFS or USFWS, the Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take” means an act which actually kills or injures wildlife.
20. Essential Fish Habitat. (a) No activity is authorized under this RGP which may “adversely affect” essential fish habitat (EFH) as defined under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) unless MSA Section 305 consultation addressing the consequences of the proposed activity on EFH has been completed.
(b) The BPA should follow its own procedures for complying with the requirements of the MSA. BPA may demonstrate compliance with the MSA for a proposed activity through a programmatic or individual consultation with the National Marine Fisheries Service.
21. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring that an activity authorized by this RGP complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether “incidental take” permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity.
22. Historic Properties. (a) No activity is authorized under this RGP which may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.
(b) The BPA should follow its own procedures for complying with the requirements of Section 106 of the NHPA. BPA may demonstrate compliance with the NHPA for a proposed activity through a programmatic or individual consultation with the appropriate State and/or Tribal Historic Preservation Officer (SHPO/THPO).
(c) Prospective permittees should be aware that Section 110k of the NHPA (54 USC § 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.
23. Discovery of Previously Unknown Remains and Artifacts. (a) Permittees that discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by this RGP must immediately notify the Corps and BPA of what they have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. Notification shall be sent to the Corps electronically (cenwp.notify@usace.army.mil) and shall identify the Corps project number and clearly specify the purpose is to report a cultural resource discovery. The district engineer or BPA will initiate the federal, tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.
(b) The permittee shall implement the procedures as outlined on the Inadvertent Discovery Plan posted on the Portland District Regulatory website at https://www.nwp.usace.army.mil/Missions/Regulatory/Nationwide.aspx
24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non-federal applicants to demonstrate that the structures comply with established state or federal, dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety.
25. Water Quality. (a) Where the certifying authority (federal, state, or authorized tribe, as appropriate) has not previously certified that activities under this RGP complies with Section 401 of the Clean Water Act, a Section 401 water quality certification for the proposed discharge must be obtained or waived. If the permittee cannot comply with all of the conditions of a water quality certification previously issued by a certifying authority for this RGP, then the permittee must obtain a water quality certification or waiver for the proposed discharge in order for the activity to be authorized by this RGP.
(b) If the certifying authority has not previously certified compliance of activities under this RGP, the proposed discharge is not authorized by this RGP until water quality certification is obtained or waived. If the certifying authority issues a water quality certification for the proposed discharge, the permittee must submit a copy of the certification to the Corps.
(c) The district engineer or certifying authority may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality.
26. Coastal Zone Management. For activities in or affecting the Oregon coastal zone that have not previously received a state coastal zone management consistency concurrence, an individual state coastal zone management consistency concurrence must be obtained, or a presumption of concurrence must occur. If the permittee cannot comply with all of the conditions of a coastal zone management consistency concurrence previously issued by the state, then the permittee must obtain an individual coastal zone management consistency concurrence or presumption of concurrence in order for the activity to be authorized by this RGP. The district engineer or a state may require additional measures to ensure that the authorized activity is consistent with state coastal zone management requirements.
27. Transfer of RGP Verifications. If the permittee sells the property associated with an RGP verification, the permittee may transfer the RGP verification to the new owner by submitting a letter to the appropriate Corps district office to validate the transfer. A copy of the RGP verification must be attached to the letter, and the letter must contain the following statement and signature:
“When the structures or work authorized by this regional general permit are still in existence at the time the property is transferred, the terms and conditions of this regional general permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this regional general permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.”
_____________________________________________
(Transferee)
_____________________________________________
(Date)
28. Activities Affecting Structures or Works Built by the United States. An activity that requires review by, or permission from, the Corps pursuant to 33 USC § 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers federally authorized Civil Works project (a “Corps project”) is not authorized by this RGP until the appropriate Corps office issues the Section 408 permission or completes its review to alter, occupy, or use the Corps project, and the district engineer issues a written RGP verification.
29. Access for Inspection. The permittee shall allow Corps representatives to inspect the authorized activity at any time deemed necessary by the district engineer to ensure that the work is being, or has been, accomplished in accordance with the terms and conditions of this RGP including any special conditions added by the district engineer.
30. Contractor’s Copy of Permit. The permittee shall provide a copy of the RGP verification letter, conditions, and permit drawings to all contractors and any other parties performing the authorized work, prior to the commencement of any work in waters of the United States.
31. Construction Notification. Upon starting the authorized activities, the permittee shall notify the U.S. Army Corps of Engineers, Portland District, Regulatory Branch that the work has started. Notification shall be provided by e-mail to cenwp.notify@usace.army.mil and the email subject line shall include the Corps project number and the name of the county where the project is located.
32. Compliance Certification. Within 30 days of completing the authorized activity, the permittee shall provide the Corps a signed compliance certification documenting completion of the authorized activity. The Corps will provide the permittee the certification document with the RGP verification letter. The certification document will include:
(a) A statement that the authorized activity was done in accordance with the RGP authorization, including all general and any special conditions; and
(b) The signature of the permittee certifying the completion of the activity.
FURTHER INFORMATION:
1. Limits of this Authorization:
(a) The district engineer has authority to determine if an activity complies with the terms and conditions of this RGP.
(b) This RGP does not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law.
(c) This RGP does not grant any property rights or exclusive privileges.
(d) This RGP does not authorize any injury to the property or rights of others.
(e) This RGP does not authorize interference with any existing or proposed federal project.
2. Limits of Federal Liability: In issuing this RGP, the Federal Government does not assume any liability for the following:
(a) Damages to the permitted project or uses thereof as a result of other permitted activities or from natural causes.
(b) Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest.
(c) Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit.
(d) Design or construction deficiencies associated with the permitted work.
(e) Damage claims associated with any future modification, suspension, or revocation of this permit.
3. Reliance on Permittee’s Information: In verifying a permittee’s authorization under this RGP, the district engineer has relied, in part, on the information provided by the permittee. If this information proves to be false, incomplete, or inaccurate, the permittee’s authorization may be modified, suspended, or revoked, in whole or in part.
4. Discretionary Authority: The district engineer reserves the right (i.e., discretion) to modify, suspend, or revoke RGP authorization for a specific activity whenever the district engineer determines sufficient concerns for the environment or any other factor of the public interest so requires. Whenever the district engineer determines that a proposed specific activity covered by this RGP would have more than minimal individual or cumulative adverse effects on the environment or otherwise may be contrary to the public interest the district engineer will notify the prospective permittee that the proposed activity is not authorized by the RGP and provide instructions on how to seek authorization under an individual permit.
5. Modification, suspension, or revocation of the RGP:
(a) This RGP may be modified, suspended, or revoked in whole or in part if the Secretary of the Army or his authorized representative determines that the individual or cumulative impacts of work that would be authorized using this procedure are contrary to the public interest. Any such modification, suspension, or revocation shall become effective 30 days after the issuance of a public notice announcing such action. The final decision whether to modify, suspend, or revoke this RGP, in whole or in part, shall be made pursuant to procedures prescribed by the Chief of Engineers. Following such revocation, any future activities heretofore authorized by this RGP will require alternate Department of the Army authorization.
(b) The authorization of an individual project under this RGP may also be summarily modified, suspended, or revoked, in whole or in part, if the permittee fails to comply with the terms and conditions of the permit, if the information provided by the permittee in support of its application proves to have been false, incomplete, or inaccurate, or if significant new information surfaces which the district engineer did not consider in reaching the original permit decision. If a permittee’s authorization is revoked, the permittee shall, upon notice of such revocation, without expense to the United States and in such time and manner as the Secretary of the Army or his authorized representative may direct, restore the waterway to its former condition. If the permittee fails to comply with the direction of the Secretary of the Army or his authorized representative, the Secretary or his designee may restore the waterway to its former condition, by contract or otherwise, and recover the cost thereof from the permittee.
6. Expiration of the RGP. This RGP shall be valid from the effective date and will automatically expire 5 years from that date unless the permit is modified, revoked, or re-issued prior to that date. Activities authorized by this RGP that have commenced (e.g., are under construction) or are under contract to commence in reliance upon this RGP will remain authorized provided that the activity is completed within 12 months of the date of this RGP’s expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization.
BY AUTHORITY OF THE SECRETARY OF THE ARMY:
____________________________________________________________________
Michael D. Helton, PMP
Date
Colonel, Corps of Engineers
District Commander
Appendix 1
RGP 6 Definitions
The following terms used in this RGP may be found in the current Federal Register:
Discharge of dredged material: as defined at 33 CFR § 323.2
Discharge of fill material: as defined at 33 CFR § 323.2
High Tide Line: as defined at 33 CFR § 328.3
Mean High Water: as defined at 33 CFR § 329.12
Navigable Waters of the United States: as defined at 33 CFR § 329.4
Ordinary High Water Mark: as defined at 33 CFR § 328.3
Special Aquatic Sites: as defined at 40 CFR § § 230.40, 230.45
Structure: as defined at 33 CFR § 322.2
Waters of the United States: as defined at 33 CFR § 328.3
Wetlands: as defined at 33 CFR § 328.3
Work: as defined at 33 CFR § 322.2
The categories of habitat improvement projects are consistent with the proposed actions in the U.S. Fish and Wildlife Service biological opinion Endangered Species Act Section 7 programmatic consultation on BPA’s Columbia River Basin Habitat Improvement Program for the Columbia River Basin dated May 15, 2020 (TAILS # 01EOFW00-19FY-F-0710) and in the National Marine Fisheries Service biological opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the Fish and Wildlife Habitat Improvement Program (HIP 4) dated May 7, 2020 (NMFS No: WCRO-2020-00102).
The categories of habitat improvement projects are consistent with the proposed actions in the U.S. Fish and Wildlife Service biological opinion Endangered Species Act Section 7 programmatic consultation on BPA’s Columbia River Basin Habitat Improvement Program for the Columbia River Basin dated May 15, 2020 (TAILS # 01EOFW00-19FY-F-0710) and in the National Marine Fisheries Service biological opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the Fish and Wildlife Habitat Improvement Program (HIP 4) dated May 7, 2020 (NMFS No: WCRO-2020-00102).