HomeMy WebLinkAbout024.06 - Appendix L.6 - 404 Approval DEQof Environmental Quality
December 14, 2020
Sage L. Joyce
Montana State Program Manager
U.S. Army Corps of Engineers, Omaha District
10 West 15th Street, Suite 2200
Helena, Montana 59626-9705
Re: Montana Department of Environmental Quality 401 Water Quality Certification of Proposed Army
Corps of Engineers 2020 Nationwide Permits, General Conditions, and Regional Conditions
Dear Ms. Joyce:
The attachment to this letter (Parts A-E) constitutes the Montana Department of Environmental
Quality's position on the subject Nationwide Permits. It should not result in an undue burden
to either of our agencies, while still providing adequate water quality protection. Also, please
find enclosed the Montana Department of Environmental Quality's December 5, 2000,
guidelines for materials for stream bank stabilization as referenced in the attached certification.
We look forward to continuing the close cooperation and coordination between our two
agencies. Please do not hesitate to contact myself ( 444-0240 JKenning@mt.gov) or Keenan
Storrar (444-2734 Keenan.Storrar@mt.gov) if you have any questions.
Cc: Toney Ott -U.S. EPA, 8WD-CWS w/ Attachments
Steve Bullock, Governor I Shaun McGrath, Director I P.O. Box 200901 I Helena, MT 59620-0901 I (406) 444-2544 I www.deq.mt.gov
Water Quality Certification in Accordance With Section 401 of the Clean Water Act
for the 2020 Nationwide Permits in Montana
40 CFR § 121.7(d)(2)(i) Montana Department of Environmental Quality (DEQ) does not have project
specific infonnation that is required in the 'JOINT APPLICATION FOR PROPOSED WORK IN
MONTANA'S STREAMS, WETLANDS, FLOODPLAINS, AND OTHER WATER BODIES'. Without
this information, DEQ cannot identify specific waterways impacted by the project including wetlands and
tributary streams or confirm the status of waterways impacted by the project.
A. Certification with General Conditions
DEQ is granting Section 401 Water Quality Certification (certification) with the General Conditions listed
in Section E for Nationwide Permits 1-11, 14-20, 22~28, 30-36, 38, 41, 46-49.1
B. Special Conditions for Specific Nationwide Permits
1) DEQ is granting certification of Nationwide Permit #12 [Oil or Natural Gas Pipeline Activities],
Nationwide Permit C (#pending) [Electric Utility Line and Telecommunications Activities], and
Nationwide Pennit D (#pending) [Utility Line Activities for Water and Other Substances] for projects that
do not a) disturb the bed and banks ofwaterbodies orb) cause a violation of short-tenn water quality
standards for total suspended sediment and turbidity resulting from stream-related construction activities
because a static or vibratory plow is used and/or Horizontal Directional Drilling technology is
implemented. DEQ denies certification for all other projects that qualify under this Nationwide Permit.1
2) DEQ is granting certification of Nationwide Pennit #13 [Bank Stabilization], Nationwide Pennit #21
[Surface Coal Mining Activities], Nationwide Permit #29 [Residential Developments], Nationwide Permit
#37 [Emergency Watershed Protection and Rehabilitation], Nationwide Permit #39 [Commercial and
Institutional Developments], Nationwide Permit #40 [Agricultural Activities], Nationwide Permit #42
[Recreational Facilities], Nationwide Permit #43 [Stonnwater Management Facilities], Nationwide Permit
#44 [Mining Activities], Nationwide Permit #45 [Repair of Uplands Damaged by Discrete Events], and
Nationwide Pennit #50 [Underground Coal Mining Activities] for all projects equal to or less than 300
linear feet. 1
C. Waiver
Nationwide Permit #54 [Living Shorelines], Nationwide Pennit A (#pending) [Seaweed Mariculture
Activities], Nationwide Permit B (#pending) [Finfish Mariculture Activities] are waived as these
Nationwide Permits only apply to coastal shorelines and the Great Lakes.
D. Denial
Nationwide Permit #51 [Land Based Renewable Energy Generation Facilities], Nationwide Permit #52
[Water Based Energy Renewable Energy Generation Facilities], Nationwide #53 [Removal of Low Head
Dams], Nationwide Permit E (#pending) [Water Reclamation and Reuse Facilities] are denied for the five
year cycle. 1
1 MCA 75-5 et seq.; MCA 75-7 et seq.; MCA 87-5 et. seq.; ARM 17.30 et. seq.
E. General Conditions for Nationwide Permits
The following general conditions apply to all certified Nationwide Permits as provided in A and B above:
1) DEQ Water Protection Bureau -Discharge Permitting Program must be notified by the permittee for all
activities requiring USACE pre-construction notification (PCN)**. Notification shall be at least 30 days
prior to the commencement of the activity and include (a) the permittee name and contact information, (b)
the project name, (c) the Nationwide Permit(s) used for the project, (d) the Township, Range and Section,
(e) the project or regulated activity location in decimal latitude and longitude to the millionth degree (six
significant figures to the right of the decimal point) (f) the volume of the discharge, (g) the biological,
chemical, physical, and radiological characteristics of the discharge, (h) a description of the existing
environment at the site of the discharge, (i) the size of the area affected, G) the location or locations at
which the discharge may enter state waters. Notification of must be submitted by mail to DEQ or
electronically through DEQ's Fees, Applications, and Compliance Tracking System (FACTS) website at:
http://deq.mt.gov/Public/FACTS2·3 **For all projects where a Federal Agency is an applicant, that
agency must provide notification and submit a Joint Application to DEQ, regardless ofUSACE pre-
construction notification requirements. 3
2) This certification does not authorize the placement or construction of septic/leach systems or other
sewage treatment facilities in wetlands.3
3) This certification does not authorize construction of dams, except for aquatic restoration projects and
temporary dams associated with construction activity.3
4) This certification requires that materials used in stream bank or shore stabilization projects adhere to the
Montana Department of Environmental Quality's December 5, 2000 guidelines for materials for stream
bank stabilization. Tires may not be used to stabilize any banks in state waters. 3
5) This certification requires that all equipment be inspected for oil, gas, diesel, anti-freeze, hydraulic fluid
and other petroleum leaks. Equipment cannot continue operating in or near the water if a leak is
discovered. All such leaks will be properly repaired prior to equipment being allowed on the project site.
Leaks that occur after the equipment is moved to the project site will be fixed that same day or the next day
or be removed from the project area. If equipment is to be operated in or near water, a spill containment kit
shall be available at the project site and DEQ shall be notified of spills.3
6) This certification requires that all permittees shall, to the maximum extent practicable, incorporate and
construct design features that eliminate bridge deck run-off containing sediment, salt, or other pollutants
from discharging directly into state water. To the extent practicable, bridge deck run-off, should be directed
to a detention basin of unspecified size prior to continuing into state waters.3
7) This certification requires that riprap projects, to the extent practicable, avoid the use of geotextile fabric
as riprap bedding material. To the extent practicable, riprap voids shall incorporate approximately 30-50%
fines/soil and dormant plant material and/or root-stock.3
2 During FACTS development phase, notifications shall be sent to: DEOWPBPublicComments@mt.gov
3 MCA 75-5 et seq.; MCA 75-7 et seq.; MCA 87-5 et. seq.; ARM 17.30 et. seq.
8) The use of more than one NWP for a single and complete project is prohibited, except when the acreage
loss of waters of the United States authorized by the NWPs does not exceed the acreage limit of the NWP
with the highest specified acreage limit. For example, if a road crossing over a river is constructed under
NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of
the United States for the total project cannot exceed l!2-acre.4
9) Restored riparian areas shall be stable and should consist of native species.4
F. Reopener Clause
DEQ reserves the right to add or alter terms and conditions as appropriate to carry out its responsibilities
with respect to water quality throughout the five year Nationwide Permit Cycle.4
4 MCA 75-5 et seq.; MCA 75-7 et seq.; MCA 87-5 et. seq.; ARM 17.30 et. seq.
Policy on Stream bank Stabilization
This policy outlines the guidelines for approved materials to be used for streambank stabilization in
Montana. This policy and a draft Environment Assessment were provided to the public for comment via
public notice MT-00-10 issued September 18, 2000. Comments were accepted until October 17, 2000. The
draft Environmental Assessment is adopted as the final Environmental Assessment with the Responses to
Comments incorporated.
Signed into policy 12/05/00 by Bonnie Lovelace, Chief, Water Protection Bureau and 12/06/00 by Jan
Sensibaugh, Administrator, Permitting & Compliance Division.
GUIDELINES FOR MATERIALS FOR STREAMBANK
STABILIZATION
The following guidelines represent the efforts of a work group composed of Conservation District
representatives, natural resource consultants, environmental interests, and state and federal regulatory
agencies. They are suggested by the Montana Department of Environmental Quality and not necessarily
endorsed by all the work group members. These guidelines are only for use in areas where the use of
high-density, angular rock is not practicable. (The term "practicable" means available and capable of
being done after taking into consideration cost, existing technology, and logistics in light of overall
project purposes [40 CFR 230.3(q)]). Sandstone or broken concrete may be acceptable alternatives to
high-density, angular rock in certain situations, although local regulation may prohibit their use. The use
of any river training device/structure may directly or cumulatively alter the ecology of Montana rivers
and streams. Cumulative impact considerations may preclude the use of any river training device.
Bank stabilization projects are sometimes authorized under the followingjurisdictions: Local
Conservation District-Natural Stream bed & Land Conservation Act (31 O); Montana Department offish
Wildlife and Parks -Stream Protection Act (SPA 124 ); County Floodplain Administrator -Floodplain
Permit; U.S. Army Corps of Engineers -Section 404/ 10 Permit; Montana Department ofEnvironmental
Quality -75-5-318, MCA Authorization; Montana Department ofNatural Resources and Conservation -
Navigable Rivers Land Use License/Easement.
The following optional design concepts should be considered in conjunction with the guidelines to
minimize environmental/aesthetic concerns:
Utilize rock only in the lower* portion or toe of the riprap with woody structures/features,
biodegradable fabric, etc. in the upper* portions.
* The elevation at which the mean annual flow occurs is the division between "upper" and "lower."
• Incorporate soil in the upper portions of the project with appropriate woody (usually willow)
plantings as near average water elevations as possible and herbaceous plantings elsewhere.
• Provide a temporary or permanent buffer strip (streamside area where protection promotes growth
and sustenance of woody vegetation) along the project length to provide for vegetation stability where
grazing or recreational use may impact plant growth.
Preferably, plantings should be on slopes of 3: 1 or flatter and irrigated, if possible.
( Note: Numerous documents with more detailed information are available. Contact the Natural Resource
Conservation Service or the Department of Natural Resources and Conservation for their "Stream Project
Manual.")
COMPLIANCE CERTIFICATION
Project: (Please attach copy of the completed "Joint Application for Proposed Work in Montana's
Streams, Wetlands, Floodplains, and Other Water Bodies.')
Upon completion of project activity, sign this certificate and return it to the following address:
Montana Department of Environmental Quality
Permitting &Compliance Division/Water Protection Bureau
Box 200901
Helena, MT 59620-0901
Please answer the following questions:
1. What is the source of the concrete rubble?
2. What is the type of concrete rubble (curb/gutter, foundation, etc.)?
3. What was the cost of the rubble?
(The recipient of the rubble cannot be compensated for accepting the rubble without a
landfill license.)
I hereby certify that the project work performed is in compliance with all applicable permits and in
compliance with the "Guidelines for Materials for Stream bank Stabilization."
Signature of Project Owner Date
I hereby certify that I provided the concrete rubble used in the project and that I did not compensate the
owner for accepting the rubble.
Signature of Concrete Rubble Provider Date