| The New England Division of the U.S. Army Corps of Engineers hereby issues a programmatic general permit (PGP) that expedites review of minimal impact work as defined by the Corps in coastal and inland waters and wetlands within the State of Rhode Island & Lands Located Within the Exterior Boundaries of an Indian Reservation.
GENERAL CRITERIA:
Activities with minimal impacts, as specified by the terms and conditions of this PGP and on the attached APPENDIX A: DEFINITION OF CATEGORIES, are either:
- Category I; eligible without screening, non-reporting, or
- Category II; determination of eligibility made during a screening meeting by the Corps, Federal Resource Agencies (U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency, National Marine Fisheries Service), and the Rhode Island Resource Agencies (Department of Environmental Management and the Rhode Island Coastal Resources Management Council).
The Corps individual permit review process and activities exempt from Corps jurisdiction are not affected by this PGP.
ACTIVITIES COVERED:
Work and structures identified in the attached Appendix A, "Definition of Categories" sheets when such work is located in, or affects, navigable waters of the United States (regulated by the Corps under Section 10 of the Rivers and Harbors Act of 1899), and the discharge of dredged or fill material into waters of the United States, including wetlands as regulated by the Corps under Section 404 of the Clean Water Act. For clarification, the term "discharge of dredge or fill material" includes discharges resulting from excavation. (as per 33CFR PART 323.2 (iii) the term "discharge of dredged material" means any addition of dredged material into and including any redeposit of dredged material within the waters of the United States).
PROCEDURES:
State Approvals
When any of the following state approvals are required for activities authorized pursuant to the PGP, such approvals must be obtained in order for this PGP authorization to be valid. (Refer also to PGP Condition No. 1)
- Rhode Island Department of Environmental Management (RIDEM) approval under the Freshwater Wetland Act, Rhode Island General Laws.
- RIDEM approval under RIGL Section 46-19-1 et seq. entitled "Inspection of Dams and Reservoirs".
- RIDEM approval under the ÒWater Quality Regulations for Water Pollution Control" pursuant to RIGL Chapter 42-17.1 and Section 46-12-1 et seq.
- RIDEM approval under the "Rules and Regulations for Solid Waste Management Facilities" pursuant to RIGL Chapter 42-17.1, Chapter 23- 18.9, and Chapter 23-19.
- Coastal Resource Management Council (CRMC) approval under RIGL Chapter 23, Section 46-23-1 et seq.
State Administered Federal Laws:
- Water Quality Certification (WQC) under Section 401 of the Federal Clean Water Act (33 U.S.C. Sec. 1341).
Section 401(a)(1) of the Clean Water Act requires applicants to obtain a water quality certification or waiver from the state water pollution control agency: RI DEM. RI DEM granted WQC for Category I activities provided the applicant obtains the required approvals listed above. RI DEM conditionally granted water quality certification for Category II activities provided 1) the applicant obtains the required approvals listed above and 2) RI DEM finds through Category II Federal / State screening meetings that the activity is reasonably likely to have minimal or no impact on water quality.
- Coastal Zone Management (CZM) Consistency under Sec. 307 of the Federal Coastal Zone Management Act of 1972, as amended.
Section 307(c) of the Coastal Zone Management Act of 1972, as amended, requires applicants to obtain a certification from RI CRMC that the activity complies with the state's coastal zone management program for activities affecting a state's coastal area. The state's Coastal Area is statutorily defined in RIGL Chapter 23, Section 46-23. RI CRMC authorizations for individual activities in the state's coastal area include a substantive evaluation regarding consistency with their coastal zone management program. CRMC issued coastal zone consistency for Category I and II of this PGP.
Therefore, a separate CZM consistency statement is not required for the activities authorized under the RI PGP.
Corps Authorizations
PGP authorizations consist of both Category I and II type activities. Eligibility, application and screening procedures described below for these categories are based on State programs and procedures currently in place. Changes in any of these programs that may affect the terms and conditions of the PGP prior to its expiration date may require modifications to the PGP. The Corps will determine the need for modifications to this document in coordination with the Federal Resource Agencies when and if any state wetland program changes occur.
All wetland boundaries must be determined in accordance with the U.S. Army Corps of Engineers 1987 Wetland Delineation Manual and subsequent federal guidance.
CATEGORY I
Non-reporting/Minimal Impacts
Eligibility - Activities in Rhode Island & Lands Located Within the Exterior Boundaries of an Indian Reservation that are:
- Subject to Corps jurisdiction,
- Meet the definition of Category I on Appendix A, Definition of Categories
- Meet the conditions of this PGP listed on pages 8-13,
- Regulated by one of the state authorities listed on page 2;
Do not require parate application to the Corps.
Note that the review thresholds under Category I apply to single and complete projects only (see condition 5). There are also restrictions on national lands as well as conditions which must be met in order for projects to be eligible for authorization under this PGP. Refer to conditions 6 through 11.
Although Category I projects are non-reporting, the Corps reserves the right to require individual permit review if there are concerns for the aquatic environment or any other factor of the public interest that may come to our attention. Refer to condition 4 on Discretionary Authority.
CATEGORY II
Screening/Minimal Impacts
Eligibility - Activities in Rhode Island & Lands Located Within the Exterior Boundaries of an Indian Reservation which are
- Subject to Corps jurisdiction,
- Meet the definition of Category II in Appendix A, Definition of Categories,
- Meet the conditions of this PGP listed on pages 8-13,
- Regulated by the RI Resource Agencies,
Require written approval from the appropriate RI Resource Agency(ies) which will include a written authorization from the Corps if appropriate. These projects will be reviewed at interagency screening meetings to determine whether such activities may be authorized under this PGP prior to authorization.
Activities exempt from state jurisdiction should apply directly to the Corps in order to be considered for screening. Such projects must receive written authorization directly from the Corps.
The Corps, the Federal Resource Agencies and the RI Resource Agencies will comprise the interagency review team. To be eligible and subsequently authorized, an activity must result in minimal impacts to the aquatic environment as determined by the review team in addition to meeting the criteria listed above. Compensatory mitigation may be required to minimize project impacts. The Corps or the appropriate RI Resource Agency(ies) may contact the applicant to discuss concerns raised during screening meetings.
Note that review thresholds under Category II apply to single and complete projects only (see condition 5). There are also restrictions on national lands as well as conditions which must be met in order for projects to be eligible for authorization under this PGP. Refer to conditions 6 through 11.
Application Procedures - Applicants will apply directly to the appropriate RI Resource Agency(ies). There is no need to apply separately to the Corps unless the activity triggering Corps jurisdiction is exempt from State regulation. The RI Resource Agency(ies) will send copies of complete applications to the Corps and the Federal Resource Agencies approximately 5 days prior to the monthly screening meetings. At this meeting the screening team will review the applications and determine eligibility for the PGP.
If the screening team determines the activity is eligible for the PGP (refer to screening procedures below), the RI Resource Agency(ies) will incorporate the Corps PGP authorization into their written authorization. If the activity is not eligible, the Corps will notify the applicant in writing prior to any state authorization.
The Corps will coordinate with the RI Historic Preservation and Heritage Commission in order to assure that PGP approvals comply with Section 106 of the National Historic Preservation Act . The Corps will forward copies of applications submitted for review under the PGP with screening forms to the RI Historic Preservation and Heritage Commission in advance of the screening meetings. Comments from the Commission will be considered in the permit review process during the comment period as outlined on pages 5 through 7 of this document.
Category II Federal/State Screening Procedures - Joint screening meetings will occur for all Category II activities. Screening meetings will be held monthly at the RI DEM offices in Providence RI. The interagency review team (representatives from the RI Resource Agencies, the Corps, and the Federal Resource Agencies) will attend and comment within the specified timeframes.
The Corps will require individual permit review if any one of the Resource Agencies expresses and identifies a concern related to the aquatic environment within their area of expertise within the specified time frame.
At the Federal/State screening meeting, the Corps will determine, in consultation with the RI Resource Agencies and the Federal Resource Agencies, if applications for Category II work:
- require additional information;
- are eligible under the PGP as proposed;
- are ineligible under the terms and/or conditions of this PGP;
- will require project modification, mitigation or other special conditions to minimize impacts and protect the aquatic environment to be eligible for this PGP; or
- require individual permit review irrespective of whether the terms and conditions of this PGP are met, based on concerns for the aquatic environment or any other factor of the public interest (see Condition 4, Discretionary Authority).
If an agency raises concerns during the screening process, the appropriate RI Resource Agency or the Corps will contact the applicant to discuss the concerns. The contact agency will depend upon the nature of the objection and whether it is a state or federal concern. If the applicant is unable to resolve the concerns, the Corps, independently or at the request of the participating RI or Federal Resource Agencies, will require an individual permit for the activity(ies).
The Corps will notify the applicant in writing within 25 working days of the screening meeting that their project is not eligible for Category II and will be kicked out to an Individual Permit Review. The Corps will provide information about submitting the necessary application materials for individual permit review. If the applicant is able to modify the proposal to address agency concerns, that project may be rescreened with the review team and subsequently authorized under the PGP.
Comments regarding projects reviewed at the screening meetings may be verbal initially and will be accepted within 10 working days of the screening meeting. Each commenting agency shall complete RI PGP comment forms for the file. Comment forms will be accepted by the Corps during the 10 working day verbal comment period following the screening meeting.
The comment forms validate the verbal objection only. In all cases, the verbal comments must be confirmed in writing within 10 working days after the verbal comment period in order for the Corps to require an individual permit. The RI and Federal Resource Agency's concerns must be clearly identified and reflect a concern related to the aquatic environment within their area of expertise. Comments should state the species or resources that could be impacted by the activity(ies) and describe the impacts that either individually or cumulatively will be more than minimal.
INDIVIDUAL PERMIT
Work that is in the INDIVIDUAL PERMIT category as listed in Appendix A, DEFINITION OF CATEGORIES, or that does not meet the terms and conditions of this PGP, will require an application for an individual permit from the Corps of Engineers (see 33 CFR Part 325.1). Applications and supporting materials for work that is clearly in the Individual Permit category should be submitted directly to the Corps of Engineers as early as possible in order to expedite the permit review process. General information and application forms can be obtained by calling the Corps New England Division at 1-800-343-4789 or 1-800-362-4367 (within Massachusetts). Individual WQC and/or CZM consistency concurrence will be required from the appropriate RI Resource Agency(ies). Filing an Individual Permit application does not relieve the applicant from their obligation to obtain all necessary state approvals from the appropriate RI Resource Agency(ies).
PROGRAMMATIC GENERAL PERMIT CONDITIONS:
The following conditions apply to activities authorized under this PGP, including all Category I (non-reporting) and Category II activities (reporting / screening):
GENERAL REQUIREMENTS:
- Other Permits. Authorization under this general permit does not obviate the need to obtain other Federal, state, or local authorizations required by law or comply with all Federal, State of Rhode Island, or local laws.
- Applicability of this PGP shall be evaluated with reference to Federal jurisdictional boundaries. Applicants are responsible for ensuring that the boundaries used satisfy the federal criteria defined at Title 33 CFR 328-329.
- Minimal Effects. Projects authorized by this general permit shall have minimal individual and cumulative adverse environmental impacts as determined by the Corps.
- Discretionary Authority. Notwithstanding compliance with the terms and conditions of this permit, the Corps of Engineers retains discretionary authority to require an application for an individual permit for any project based on concerns for the aquatic environment or for any other factor of the public interest. This authority is invoked on a case-by-case basis whenever the Corps determines that the potential consequences of the proposed activity warrant individual review based on the concerns stated above. This authority may be invoked for projects with cumulative environmental impacts that are more than minimal, or if there is a special resource or concern associated with a particular project that is not already covered by the remaining conditions of the PGP and that warrants greater review. Whenever the Corps notifies an applicant that an individual permit may be required, authorization under this PGP is void, and no work may be conducted until the individual Corps permit is obtained, or until the Corps notifies the applicant that further review has demonstrated that the work may proceed under this PGP.
- Single and Complete Projects. This PGP shall not be used for piecemeal work and shall be applied to single and complete projects. All components of a single project shall be treated together as constituting one single and complete project. All planned phases of multi-phased projects shall be treated together as constituting one single and complete project. This PGP shall not be used for any activity that is part of an overall project for which an individual permit is required. Note that modifications to State permits do not constitute a separate project. Modifications which involve Corps jurisdictions will be screened at the regular screening meetings in order to ascertain compliance with the PGP.
NATIONAL CONCERNS:
- Historic Properties. Any activity authorized by this PGP shall comply with Section 106 of the National Historic Preservation Act. Information on the location and existence of historic resources can be obtained from the Rhode Island Historical Commission and the National Register of Historic Places. If the permittee, during construction of work authorized herein, encounters a previously unidentified archaeological or other cultural resource within the area subject to Corps jurisdiction that might be eligible for listing in the National Register of Historic Places, he/she shall immediately notify the District Engineer.
- National Lands. Activities authorized by this PGP shall not impinge upon the value of any National Wildlife Refuge, National Forest, National Estuarine Research Preserves, or any other area administered by the U.S. Fish and Wildlife Service, U.S. Forest Service, or National Park Service.
- Endangered Species. No activity is authorized under this PGP which may affect a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA); or which is likely to destroy or adversely modify the critical habitat of such species; or which would result in a "take" of any threatened or endangered species of fish or wildlife, or which would result in any other violation of Section 9 of the ESA protecting threatened or endangered species of plants. Applicants shall notify the Corps if any listed species or critical habitat is in the vicinity of the project and shall not begin work until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized. Information on the location of threatened and endangered species and their critical habitat can be obtained from the U.S. Fish and Wildlife Service and National Marine Fisheries Service (addresses attached, page 14).
- Wild and Scenic Rivers. Any activity that occurs in a component of, or within 0.25 miles up or downstream of the main stem or tributaries of a river segment of, the National Wild and Scenic River System, must be reviewed by the Corps under the procedures of Category II of this PGP. This condition applies to both designated Wild and Scenic rivers and rivers designated by Congress as Study Rivers for possible inclusion while such rivers are in an official study status. Currently, there are no designated Wild and Scenic Rivers or rivers designated as Study Rivers in the State of Rhode Island & Lands Located Within the Exterior Boundaries of an Indian Reservation.
- Federal Navigation Project. Any structure or work that extends closer to the horizontal limits of any Corps navigation project than a distance of three times the project's authorized depth (see attached map for locations of these projects) shall be subject to removal at the owner's expense prior to any future Corps dredging or the performance of periodic hydrographic surveys.
- Navigation. There shall be no unreasonable interference with navigation by the existence or use of the activity authorized herein, and no attempt shall be made by the permittee to prevent the full and free use by the public of all navigable waters at or adjacent to the activity authorized herein.
MINIMIZATION OF ENVIRONMENTAL IMPACTS:
- Minimization. Discharges of dredged or fill material into waters of the United States shall be avoided and minimized to the maximum extent practicable.
- Work in Wetlands. Heavy equipment working in wetlands shall be avoided if possible. If such work is unavoidable, when site conditions are such that rutting, soil compaction, erosion or other disturbance would result, equipment shall be placed on mats or other measures taken (delay work until frozen or dry ground conditions exist) to minimize adverse effects to soil and vegetation. Disturbed areas in wetlands shall be restored to preconstruction contours and conditions upon completion of the work. In many cases the mats are considered a discharge of fill material and must be included in the quantification of impact area and authorized by this PGP.
- Temporary Fill. Temporary fill in waters and wetlands authorized by this PGP (e.g. access roads, cofferdams) shall be properly stabilized during use to prevent erosion. In addition, temporary fill in tidal, navigable or inland waters of the U.S. should consist of a material that minimizes impacts to water quality (e.g. sandbags or clean, gravel and/or stone). Temporary fill in wetlands shall be placed on geotextile fabric which is laid on the existing wetland grade. Temporary fills shall be disposed of at an upland site and suitably contained to prevent erosion and/or transport to a waterway or wetland. All areas of temporary fill shall be restored to their original elevations.
- Sedimentation and Erosion Control. Adequate sedimentation and erosion control management measures, practices and devices, such as phased construction, vegetated filter strips, geotextile silt fences or other devices, shall be installed and properly maintained to reduce erosion and retain sediment on-site during and after construction. They shall be capable of preventing erosion, of collecting sediment, suspended and floating materials, and of filtering fine sediment. These devices shall be removed upon completion of work and the disturbed areas shall be stabilized. The sediment collected by these devices shall be removed and placed at an upland location, in a manner that will prevent its later erosion into a waterway or wetland. All exposed soil and other fills shall be permanently stabilized at the earliest practicable date.
- Waterway Crossings.
(a) All temporary and permanent crossings of waterbodies shall be suitably culverted, bridged, or otherwise designed to withstand and to prevent the restriction of high flows, to maintain existing low flows, and so as not to obstruct the movement of aquatic life indigenous to the waterbody beyond the actual duration of construction.
(b) No open trench excavation in flowing waters shall be allowed unless screened and conditioned to protect the aquatic environment.
(c)Temporary bridges, culverts, or cofferdams shall be used for equipment access across streams (note: areas of fill and/or cofferdams must be included in total waterway/wetlands impacts to determine applicability of this general permit).
(d) For projects that otherwise meet the terms of Category I, unconfined in-stream construction work shall be conducted during the low flow period of July 1 - October 1 in any year. Projects that are conducted outside of that time period are ineligible for Category I and shall be screened pursuant to Category II, regardless of the waterway and wetland fill and/or impact area.
- Discharge of Pollutants. All activities involving any discharge of pollutants into waters of the United States authorized under this general permit shall be consistent with applicable water quality standards, effluent limitations, standards of performance, prohibitions, and pretreatment standards and management practices established pursuant to the Clean Water Act (33 U.S.C. 1251), and applicable state and local laws. If applicable water quality standards, limitations, etc., are revised or modified during the term of this permit, the authorized work shall be modified to conform with these standards within 6 months of the effective date of such revision or modification, or within a longer period of time deemed reasonable by the District Engineer in consultation with the Regional Administrator of the Environmental Protection Agency. Applicants may presume that state water quality standards are met with issuance of the Section 401 Water Quality Certification (Applicable only to the Section 404 activity).
- Spawning Areas. Discharges into known:
a) fish and shellfish spawning or nursery areas; or
b) amphibian and waterfowl breeding areas, during spawning or breeding seasons shall be avoided. Impacts to these areas shall be minimized to the maximum extent practicable during all other times of the year.
- Storage of Seasonal Structures. Coastal structures such as pier sections, floats, etc., that are removed from the waterway for a portion of the year shall be stored in an upland location, located above mean high water and not in a vegetated wetland.
- Environmental Values. The permittee shall make every reasonable effort to carry out the construction or operation of the work authorized herein in a manner so as to maintain as much as is practicable, and to minimize any adverse impacts on, existing fish, and wildlife, and natural environmental values.
PROCEDURAL CONDITIONS:
- Inspections. The permittee shall allow the District Engineer or his authorized representative(s) to make periodic inspections at any time deemed necessary in order to ensure that the work is being performed in accordance with the terms and conditions of this permit. The District Engineer may also require post-construction engineering drawings for completed work, and post-dredging survey drawings for any dredging work.
- Maintenance. The permittee shall maintain the work or structures authorized herein in good condition, including maintenance to ensure public safety. Note that this does not include maintenance of dredging projects. Maintenance dredging is subject to the review thresholds described on the attached Appendix A, DEFINITION OF CATEGORIES and/or any conditions included in a written Corps authorization.
- Property Rights. This PGP does not convey any property rights, either in real estate or material, or any exclusive privileges, nor does it authorize any injury to
property or invasion of rights or any infringement of federal, state, or local laws or regulations.
- Modification, Suspension, and Revocation. This PGP may be either modified, suspended, or revoked in whole or in part pursuant to the policies and procedures of 33 CFR 325.7; any such action shall not be the basis for any claim for damages against the United States.
- Restoration. The permittee, upon receipt of a notice of revocation of authorization under this PGP, shall restore the wetland or waterway to its former conditions without expense to the United States, and as directed by the Secretary of the Army or his authorized representative. If the permittee fails to comply with such a directive, the Secretary or his designee may restore the wetland or waterway to its former condition, by contract or otherwise, and recover the cost from the permittee.
- Special Conditions. The Corps may impose other special conditions on a project authorized pursuant to this PGP that are determined necessary to minimize adverse environmental effects or based on any other factor of the public interest. These may be based on concerns from a RI Resource Agencies or a Federal resource agency. Failure to comply with all conditions of the authorization, including special conditions, will constitute a permit violation and may subject the permittee to criminal, civil, or administrative penalties or restoration.
- False or Incomplete Information. If the Corps makes a determination regarding the eligibility of a project under this PGP, and subsequently discovers that it has relied on false, incomplete, or inaccurate information provided by the permittee, the permit shall not be valid and the U.S. government may institute legal proceedings.
- Abandonment. If the permittee decides to abandon the activity authorized under this PGP, unless such abandonment is merely the transfer of property to a third party, he/she may be required to restore the area to the satisfaction of the District Engineer.
- Enforcement cases. This general permit does not apply to any existing or proposed activity in Corps jurisdiction associated with a Corps of Engineers or EPA enforcement action, until such time as the enforcement action is resolved or the Corps
determines that the activity may proceed independently without compromising the enforcement action.
DURATION OF AUTHORIZATION / GRANDFATHERING:
- Duration of Authorization. This PGP authorization expires five years from the effective date. Category I activities authorized under this PGP that have commenced (i.e., are under construction, or are under contract to commence) will remain authorized provided the activity is completed within twelve months of the expiration date. Category II activities authorized under this PGP are valid as specified in the PGP authorization letter unless:
a) the PGP is either modified or revoked, or
b) discretionary authority has been exercised in accordance with 33 CFR 325.2(e)(2). Activities completed under this PGP will continue to be authorized by the PGP after the expiration date.
- Previously Authorized Activities.
a) Projects that have received written authorization from the Corps under the Nationwide permits prior to issuance of this PGP shall remain authorized as specified in each authorization.
b) Non-reporting nationwide permit activities which have commenced, (i.e., are under construction or are under contract to commence) prior to the issuance date of this PGP, remain authorized provided the activity is completed within twelve months of the date of issuance of this PGP. These activities are still subject to discretionary authority on a case-by-case basis in accordance with Condition 4. The applicant must be able to document to the satisfaction of the Corps that the project was under construction or contract by the appropriate date.
c) Activities authorized pursuant to 33 CFR Part 330.3 (activities occurring before certain dates) are not affected by this PGP.
Original document on file, signed by District Engineer at District office.
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