2020 RENEWAL OF REGIONAL GENERAL PERMIT (RGP) 31 Presenters: Lori - - PowerPoint PPT Presentation

2020 RENEWAL OF REGIONAL GENERAL PERMIT (RGP) 31

Presenters: Lori Beckwith and Monte Matthews U.S. Army Corps of Engineers Wilmington District April 9, 2019

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PURPOSE OF RGP 31:

To authorize the discharge of dredged or fill material in waters of the United States (U.S.), including wetlands, associated with maintenance, repair, and construction projects conducted by the various Divisions of the North Carolina Department of Transportation (NCDOT), including the Divisions of Highways, Rail, Bicycle/Pedestrian, etc.

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The current version of RGP 31 will expire on April 30, 2020

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General Permit

General Permit means a Department of the Army (DA) authorization that is issued on a nationwide or regional basis for a category or categories of activities when: (1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; OR (2) The general permit would result in avoiding unnecessary duplication

• f the regulatory control exercised by another Federal, state, or local

agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal.

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Regional Permit

• A Regional Permit (e.g., RGP 31) is a type of general permit that

is issued by a division (Corps) or district engineer (Corps).

• RGP 31 is specific to North Carolina.
• RGP 31 is issued by the Wilmington District Engineer for use by

NCDOT.

• Conditions are included in RGP 31 to protect the public interest.

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Discretionary Authority

• When the Corps determines, on a case-by-case basis, that the

concerns for the aquatic environment so indicate, he/she may exercise discretionary authority to override a regional permit (e.g., RGP 31) and require an individual application and review.

• The Corps evaluates each project (case-by-case) to determine if

the use of RGP 31 is appropriate.

• More about discretionary authority later…

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Some of the Proposed Changes for 2020…

In the 2020 (draft) version of RGP 31:

• Same activities are authorized
• Rearranged the list
• Reworded some of the activities
• Interchanges and intersections are in a separate category
• Increased impact thresholds
• Wetland impact threshold depends on location
• “Road widening” (“c” in the 2015 version) no longer includes (1) the word

“minor” or (2) examples

• Threshold reference to “open water” impacts no longer includes “non-tidal”

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Activities Authorized by RGP 31

2015 (Current) Version

• a. Construction, maintenance, and repair of

bridges, to include work on the approaches.

• b. Best-fit widening projects that have undergone

interagency review and completed the current interagency Merger Process.

• c. Minor widening projects, such as paving and/or

widening secondary roads, or interchange improvements.

• d. Stream relocation(s) associated with projects

identified in a-c above. Stream relocation lengths are to be evaluated independently and are not included within each respective maximum limit threshold for the authorized actions stated above.

2020 Draft Version

• a. (1) Road widening, and/or (2) construction,

maintenance, and/or repair of bridges. For bridge projects, work can include the approaches.

• b. (1) Improvement of interchanges or

intersections, or (2) construction of interchanges

• r intersections over, or on, existing roads.
• c. Best-fit widening projects that (1) have

undergone interagency review and completed the interagency Merger Process and (2) would cause

• nly minimal individual and cumulative

environmental effects. Stream relocation activities are included in “a”, “b”, and “c” – not as a separate item (“d”), as in current (2015) version.

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2020 (Draft) Authorized Activities

• a. (1) Road widening, and/or (2) construction, maintenance, and/or

repair of bridges. For bridge projects, work can include the approaches.

• b. (1) Improvement of interchanges or intersections, or (2) construction
• f interchanges or intersections over, or on, existing roads.
• c. Best-fit widening projects that (1) have undergone interagency review

and completed the interagency Merger Process and (2) would cause

• nly minimal individual and cumulative environmental effects.

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2020 (Draft) Authorized Activities

• a. (1) Road widening, and/or (2) construction, maintenance, and/or

repair of bridges. For bridge projects, work can include the approaches.

• b. (1) Improvement of interchanges or intersections, or (2) construction
• f interchanges or intersections over, or on, existing roads.
• c. Best-fit widening projects that (1) have undergone interagency review

and completed the interagency Merger Process and (2) would cause

• nly minimal individual and cumulative environmental effects.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• a. Construction, maintenance, and

repair of bridges, to include work on the approaches.

• c. Minor widening projects, such as

paving and/or widening secondary roads,

• r interchange improvements.

2020 Draft Version

• a. (1) Road widening, and/or

(2) construction, maintenance, and/or repair of bridges. For bridge projects, work can include the approaches.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• a. Construction, maintenance, and

repair of bridges, to include work on the approaches.

• c. Minor widening projects, such as

paving and/or widening secondary roads,

• r interchange improvements.

2020 Draft Version

• a. (1) Road widening, and/or

(2) construction, maintenance, and/or repair of bridges. For bridge projects, work can include the approaches. For these activities, the 2020 impact thresholds = 2015 impact thresholds.

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2020 (Draft) Language for “a”

• a. (1) Road widening, and/or (2) construction, maintenance, and/or

repair of bridges. For bridge projects, work can include the approaches. Permanent impacts that result in a loss of waters of the U.S., excluding stream relocation(s), must be less than or equal to 500 linear feet (lf) of stream and/or one (1) acre of wetland/open water for each single and complete linear project. .

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Single and complete linear project

For linear projects, the ‘‘single and complete project’’ (i.e., single and complete crossing) will apply to each crossing of a separate water of the U.S. (i.e., single waterbody) at that location; except that for linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly-shaped wetland or lake, etc., are not separate waterbodies and crossing of such features cannot be considered separately.

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Stream relocation(s) under “a”

• Stream relocation(s) also authorized
• Evaluated independently - not limited to the loss thresholds of 500 lf of

stream and/or 1 acre of wetland/open water (i.e., stream relocations do not factor into these thresholds) for each single and complete linear project under “a”.

• If the Corps determines that the proposed stream relocation(s) is of

such a magnitude that it cannot be authorized by this RGP, even if the permanent losses from road widening, and/or construction, maintenance, and repair of bridges do not exceed the impact thresholds for this RGP, an Individual Permit (IP) will be required.

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2020 (Draft) Authorized Activities

• a. (1) Road widening, and/or (2) construction, maintenance, and/or

repair of bridges. For bridge projects, work can include the approaches.

• b. (1) Improvement of interchanges or intersections, or (2)

construction of interchanges or intersections over, or on, existing roads.

• c. Best-fit widening projects that (1) have undergone interagency review

and completed the interagency Merger Process and (2) would cause

• nly minimal individual and cumulative environmental effects.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• c. Minor widening projects, such

as paving and/or widening secondary roads, or interchange improvements. 2020 Draft Version

• b. (1) Improvement of

interchanges or intersections,

• r (2) construction of

interchanges or intersections

• ver, or on, existing roads.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• c. Minor widening projects, such

as paving and/or widening secondary roads, or interchange improvements. 2020 Draft Version

• b. (1) Improvement of

interchanges or intersections,

• r (2) construction of

interchanges or intersections

• ver, or on, existing roads.

Impact thresholds in 2020 version are higher than the thresholds in 2015 version. Impact threshold for wetlands depends

• n location.

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2020 (Draft) Language for “b”

• b. (1) Improvement of interchanges or intersections, or (2)

construction of interchanges or intersections, over or, on existing roads. For activities authorized under “b”, the thresholds for permanent impacts that result in a loss of waters of the U.S. (excluding stream relocation(s)) depend on the location of the impacts:

• Coastal Plain of North Carolina (both inner and outer)
• All other areas in North Carolina

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2020 (Draft) Language for “b”

• In the coastal plain of North Carolina (both inner coastal plain and
• uter coastal plain) - permanent impacts that result in a loss of waters
• f the U.S., excluding stream relocation(s), must be less than or equal

to 1,000 lf of stream and/or 3 acres of wetland/open water for the entire interchange or intersection project.

• All other areas of North Carolina - permanent impacts that result in

a loss of waters of the U.S., excluding stream relocation(s), must be less than or equal to 1,000 lf of stream and/or 2 acres of wetland/open water for the entire interchange or intersection project.

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Single and Complete Project

For permitting purposes, each interchange or intersection is considered to be one single and complete project. For example, an interchange project cannot result in a permanent loss (excluding stream relocation), of (1) greater than 1,000 lf

• f stream and/or 3 acres of wetland/open water in the coastal

plain OR (2) greater than 1,000 lf of stream and/or 2 acres of wetland/open water in all other areas of North Carolina.

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Stream Relocation(s) under “b”

• Stream relocation(s) also authorized
• Evaluated independently – not limited to the loss thresholds of (1) 1,000 lf of

stream and/or 3 acres of wetland/open water in the coastal plain OR (2) 1,000 lf of stream and/or 2 acres of wetland/open water in all other areas of North Carolina (i.e., stream relocations do not factor into these thresholds) for each interchange or intersection project.

• If the Corps determines that the proposed stream relocation(s) is of such a

magnitude that it cannot be authorized by this RGP, even if the permanent losses from improvement of interchanges or intersections, or construction of interchanges or intersections over, or on, existing roads do not exceed the impact thresholds for this RGP, an Individual Permit will be required.

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Summary for 2020 “b” Interchanges and Intersections

Permanent impacts that result in a loss of waters of the U.S.:

• Stream and wetland impact thresholds have increased.
• Impact threshold for wetlands depends on the location of the

impacts.

• Impact thresholds apply to the entire interchange or intersection

project (i.e., the interchange or intersection is one single and complete project for permitting).

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2020 (Draft) Authorized Activities

• a. (1) Road widening, and/or (2) construction, maintenance, and/or

repair of bridges. For bridge projects, work can include the approaches.

• b. (1) Improvement of interchanges or intersections, or (2) construction
• f interchanges or intersections over, or on, existing roads.
• c. Best-fit widening projects that (1) have undergone interagency

review and completed the interagency Merger Process and (2) would cause only minimal individual and cumulative environmental effects.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• b. Best-fit widening projects that

have undergone interagency review and completed the current interagency Merger Process. . 2020 Draft Version

• c. Best-fit widening projects that

(1) have undergone interagency review and completed the interagency Merger Process and (2) would cause only minimal individual and cumulative environmental effects.

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Activities Authorized by RGP 31 (Rearranged for 2020)

2015 (Current) Version

• b. Best-fit widening projects that

have undergone interagency review and completed the current interagency Merger Process. . 2020 Draft Version

• c. Best-fit widening projects that

(1) have undergone interagency review and completed the interagency Merger Process and (2) would cause only minimal individual and cumulative environmental effects. No impact thresholds (2015 and 2020 versions)

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2020 (Draft) Language for “c”

• c. Best-fit widening projects that (1) have undergone interagency review

and completed the interagency Merger Process and (2) would cause only minimal individual and cumulative environmental effects. The Merger Process merges the requirements of the National Environmental Policy Act (NEPA) with those of Section 404 of the Clean Water Act (CWA). As noted above, a best-fit widening project must complete the entire Merger Process in order to qualify for authorization under “c”, Projects that require an Environmental Impact Statement (EIS) do not qualify for use of “c”, or for any use of RGP 31.

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2020 (Draft) Language for “c”

Best-fit widening projects may include a small amount of new location roadway for components such as interchanges, intersections, road segments, etc., provided that (1) the Merger Team concurs on the new location portion, and (2) the Corps determines that the amount of new location roadway is acceptable for authorization under “c”. Note that “new location roadway” is not limited to the examples provided above. While there is no impact threshold under “c”, the Corps will require an Individual Permit if the proposed impacts of the best-fit widening project would have more than minimal individual and cumulative adverse environmental

• effects. Additionally, if the Corps determines, on a case-by-case basis, that the

concerns for the aquatic environment so indicate, he/she may exercise discretionary authority to override the regional permit and require an Individual Permit.

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Special and General Conditions

• 2020 (draft): 22 special conditions and 37 general conditions.

2015 (current) version: 21 special conditions and 32 general conditions.

• RGPs do not have regional conditions, as the NWPs do.
• The Corps may place additional special conditions, limitations, or

restrictions on any verification of the use of RGP 31 on a project- by-project basis. This special condition is also in the 2015 (current) version.

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Special Condition “u”

• Special Condition “u” of the 2020 (draft) RGP 31 that you’re currently

reviewing reads as follows: “In the event that any Federal agency maintains an objection or any required State authorization is outstanding, no notice to proceed will be given until

• bjections are resolved and State authorizations are issued.”
• Replacement for special condition “u”:

“The District Engineer will consider any comments from Federal and/or State agencies concerning the proposed activity's compliance with the terms and conditions of this RGP.”

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Q & As for 2020 (draft) RGP 31

Q: Are impacts from bank stabilization and construction of floodplain benches temporary impacts? A: No. For permitting, both activities are permanent “impacts,” but neither are considered to be “losses.”

For RGP 31, losses of WOUS result from permanent, adverse effects from filling, flooding, e For RGP 31, losses of WOUS result from permanent, adverse effects from filling, flooding, excavation, or drainage caused by the regulated activity. These losses include discharges that change an aquatic area to dry land increase the bottom elevation of a waterbody or change the

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Q & As for 2020 (draft) RGP 31

Q: Since bank stabilization activities and floodplain benches are permanent impacts, do impact amounts from these activities factor into the impact thresholds for many of the activities authorized by RGP 31 at each single and complete project/crossing? A: No, impacts from these activities do not factor into the impact thresholds. The impact thresholds are for permanent “losses,” not permanent “impacts.” Note that in the event that the Corps determines that proposed permanent impacts (even permanent impacts that are not permanent losses, such as bank stabilization), would result in more than minimal individual and cumulative adverse effects on the environment, the project, as proposed, cannot be authorized by RGP 31. If this occurs, NCDOT can either revise the project (to qualify for use of RGP 31) or apply for an Individual Permit. For RGP 31, losses of WOUS result from permanent, adverse effects from

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Q & As for 2020 (draft) RGP 31

Q: Does RGP 31 authorize temporary impacts, such as dewatering? A: Yes Q: What is the threshold for temporary impacts in RGP 31? A: There is no stated threshold for temporary impacts in RGP 31. Each proposed project will be reviewed by the Corps prior to authorization. In the event that the Corps determines that proposed temporary impacts would result in more than minimal individual and cumulative adverse effects to the environment, the project, as proposed, cannot be authorized by RGP 31. If this

• ccurs, NCDOT can either revise the project (to qualify for use of RGP 31) or

apply for an Individual Permit.

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Q &As for 2020 (draft) RGP 31

Q: Once NCDOT submits a PCN for use of RGP 31, is a project automatically verified/authorized under RGP 31 if NCDOT doesn’t hear back from the Corps within a certain timeframe (e.g., 45 days, 60 days, etc.)? A: No. In accordance with special condition 1.a., NCDOT must receive written verification from the Corps that the proposed work complies with RGP 31 prior to commencing any activity authorized by RGP 31. The Corps will make every effort to issue a decision within 60 days from receipt date of a complete PCN for RGP 31; however, there are situations that will require additional review time, including but not limited to, resolution of issues such as incomplete consultation (e.g., Section 7 ESA, Section 106 NHPA, etc.), or if NCDOT does not provide additional information requested by the Corps.

r RGP 31, losses of WOUS result from permanent, adverse effects from filling, This is true for the 2015 (current) RGP 31, as well.

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Discretionary Authority

• When the issuing authority (the Corps) determines on a case-by-case

basis that the concerns for the aquatic environment so indicate, he/she may exercise discretionary authority to override the regional permit and require an Individual Permit.

• The Corps evaluates each project (case-by-case) to determine if the

use of a general permit (to include RGP 31) is appropriate.

• To determine if a project qualifies for use of RGP 31, the Corps

considers a number of factors (Decision Matrix).

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Decision Matrix

Factors can include, but are not limited to:

Water Quality ORW HQW Drinking Water 303(d) Listed Work in Existing ROW Avoidance Minimization Compensatory Mitigation EFH AEC Trout Waters Historic Properties Federally Listed Species Designated Critical Habitat Public Interest Factors Permit Conditions Additional Special Conditions Project Location Location of Impacts Scope Amount of impacts to WoUS Types of impact to WoUS Type of WoUS Quality of WoUS Merger Decisions (if applicable) Substantive concerns of any Federal, State, or local agency Substantive concerns of Tribes

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Comments

• Submit comments on the draft of RGP 31 (that you received via email on April 1, 2019)

by May 1, 2019.

• If you request a revision, please detail the reason(s) for the request.
• Comment via Track Changes (under review tab). Please do not change the format of the

Word document/Draft RGP 31 that was sent to you via email on April 1, 2019.

• For NCDOT Divisions - please make sure that the draft of RGP 31 is reviewed by your

Division Environmental Office/er and Assistant DEO.

• 30-day Public Notice planned for July 1, 2019.
• Send comments to Lori Beckwith (loretta.a.Beckwith@usace.army.mil) AND Monte

Matthews (Monte.K.Matthews@usace.army.mil)

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Questions?