Permit_Authorization_and_Conditional_Approval_0001.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, SEATTLE DISTRICT

4735 EAST MARGINAL WAY SOUTH, BLDG 1202

SEATTLE, WA 98134-2388

Regulatory Branch January 18, 2022

Ms. Patricia Crandell U.S. Fish and Wildlife Service Abernathy Fish Technology Center 1440 Abernathy Road Longview, Washington 98632

Reference: NWS-2021-618 USFWS - Abernathy Fish Technology Center (Intake Structure Upgrades)

Dear Ms. Crandell:

We have reviewed your application to replace the existing fish hatchery water intake structure and upgrade the existing fish ladder. Work includes the temporary discharge of 80 cubic yards (cy) of material for work area isolation and total discharge of up to 301 cy for weir construction and associated work, in Abernathy Creek, near Longview, Cowlitz County, Washington. Based on the information you provided to us, Nationwide Permit (NWP) 3, Maintenance (Federal Register January 6, 2017, Vol. 82, No. 4) authorizes your proposal as depicted on the enclosed drawings dated November 4, 2020.

In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 3, Terms and Conditions and the following special conditions:

a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species, in particular the Lower Columbia River Chinook and coho, and Columbia River chum salmon. In order to legally take a listed species, you must have a separate authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA Section 7 consultation Biological Opinion (BO) with non-discretionary “incidental take” provisions with which you must comply). The enclosed BO prepared by the National Marine Fisheries Service (NMFS) dated January 12, 2022 contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with the specified “incidental take” in the BO (NMFS Reference Number WCRO-

-2-

2021-00940). Your authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the attached BO. These terms and conditions are incorporated by reference in this permit. Failure to comply with the commitments made in this consultation constitutes non-compliance with the ESA and your Corps permit. The NMFS is the appropriate authority to determine compliance with ESA.

b. In order to protect the listed threatened and endangered species in the project area, you may conduct the authorized activities in the work window as agreed to and documented in writing through consultation by the National Marine Fisheries Service in any year this permit is valid. If changes to the originally authorized work window are proposed, you must re-coordinate these changes with the Services and receive written concurrence on the changes. Copies of the concurrence(s) must be sent to the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch, within 10 days of the date of the revised concurrence.

c. In order to protect the Essential Fish Habitat (EFH) for Pacific Coast salmon listed under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), any conservation recommendations as agreed to by USFWS and coordinated with the National Marine Fisheries Service are incorporated by reference in this permit. Failure to comply with the commitments made in this negotiation constitutes non-compliance with the MSA and your U.S. Army Corps of Engineers permit.

The USFWS completed National Historic Preservation Act, Section 7 Endangered

Species Act (ESA) consultation and Magnuson Stevens Act, Essential Fish Habitat (EFH) consultation for the proposed activity [National Marine Fisheries Service reference WCRO-2021-00940]. For the purpose of this Department of the Army authorization, we have determined this project will comply with the requirements of these laws provided you comply with all of the permit conditions. We have determined the permit action is sufficiently addressed in their ESA and EFH consultation documents. By this letter we are advising you and the Services, in accordance with 50 CFR 402.07 and 50 CFR 600.920(b), that this agency has served as the lead Federal agency for the ESA and EFH consultation responsibilities for the activity described above.

The authorized work complies with the Washington State Department of Ecology’s

(Ecology) Water Quality Certification (WQC) requirements for this NWP. No further coordination with Ecology for WQC is required.

You have not requested a jurisdictional determination for this proposed project. If you believe the U.S. Army Corps of Engineers does not have jurisdiction over all or

-3-portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed.

Our verification of this 2017 NWP authorization is valid until March 18, 2022, unless the NWP is modified, reissued, or revoked prior to that date. If the authorized work for the 2017 NWP authorization has not been completed by that date and you have commenced or are under contract to commence this activity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project.

Upon completing the authorized work, you must fill out and return the enclosed Certificate of Compliance with Department of the Army Permit. All compliance reports should be submitted to the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch electronically at nws.compliance@usace.army.mil. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey.

Referenced documents and information about our program are available on our website at www.nws.usace.army.mil, select “Regulatory Permit Information”. A copy of this letter with enclosures will be furnished to Ms. Linda Mark, KPFF via email at linda.mark@kpff.com. If you have any questions, please contact me at danette.l.guy@usace.army.mil or (206) 348-3999.

Sincerely, Danette L. Guy, Senior Project Manager Regulatory Branch

Enclosures cc:

Ecology (ecyrefedpermits@ecy.wa.gov) USFWS (wfwoctap@fws.gov)