7_PNSY Maintenance Dredge Permit combined.pdf

MAINE GENERAL PERMIT (GP)

AUTHORIZATION LETTER AND SCREENING SUMMARY

CORPS PERMIT #

CORPS GP(s)#

STATE ID#

DESCRIPTION OF WORK:

LAT/LONG COORDINATES: N W USGS QUAD:________________________

I. CORPS DETERMINATION:

Based on our review of the information you provided, we have determined that your project will have only minimal individual and cumulative impacts on waters and wetlands of the United States. Your work is therefore authorized by the U.S. Army Corps of Engineers under the enclosed Federal Permit, the Maine General Permit (GP). Accordingly, we do not plan to take any further action on this project.

You must perform the activity authorized herein in compliance with all the terms and conditions of the GP [including any attached Additional Conditions and any conditions placed on the State 401 Water Quality Certification including any required mitigation]. Please review the enclosed GP carefully, including the GP conditions beginning on page 5, to familiarize yourself with its contents. You are responsible for complying with all of the GP requirements; therefore you should be certain that whoever does the work fully understands all of the conditions. You may wish to discuss the conditions of this authorization with your contractor to ensure the contractor can accomplish the work in a manner that conforms to all requirements.

If you change the plans or construction methods for work within our jurisdiction, please contact us immediately to discuss modification of this authorization. This office must approve any changes before you undertake them.

Condition 38 of the GP (page 18) provides one year for completion of work that has commenced or is under contract to commence prior to the expiration of the GP on October 14, 2025. You will need to apply for reauthorization for any work within Corps jurisdiction that is not completed by October 14, 2026.

This authorization presumes the work shown on your plans noted above is in waters of the U.S. Should you desire to appeal our jurisdiction, please submit a request for an approved jurisdictional determination in writing to the undersigned.

No work may be started unless and until all other required local, State and Federal licenses and permits have been obtained. This includes but is not limited to a Flood Hazard Development Permit issued by the town if necessary.

II. STATE ACTIONS: PENDING [ ], ISSUED [ X ], DENIED [ ] DATE 1/26/18

APPLICATION TYPE: PBR: , TIER 1: , TIER 2 : , TIER 3: X , LURC: _____ DMR LEASE: _____ NA: _____

III. FEDERAL ACTIONS:

JOINT PROCESSING MEETING: 4/23/20 LEVEL OF REVIEW: CATEGORY 1: CATEGORY 2: X

AUTHORITY (Based on a review of plans and/or State/Federal applications): SEC 10 X , 404 10/404 , 103__X_____

EXCLUSIONS: The exclusionary criteria identified in the general permit do not apply to this project.

FEDERAL RESOURCE AGENCY OBJECTIONS: EPA_NO__, USF&WS_NO__, NMFS_NO__

If you have any questions on this matter, please contact my staff at 207-623-8367 at our Augusta, Maine Project Office. In order for us to better serve you, we would appreciate your completing our Customer Service Survey located at http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0

JAY L. CLEMENT FRANK J. DEL GIUDICE DATE

SENIOR PROJECT MANAGER CHIEF, PERMITS & ENFORCEMENT BRANCH

MAINE PROJECT OFFICE REGULATORY DIVISION

CDR J.D. HERRIN, CEC, USN

PORTSMOUTH NAVAL SHIPYARD

BLDG 59 F1 2

PORTSMOUTH, NH 03804-5000

NAE-2013-00743

NRPA

-70.740772°

USGS QUAD:________________________KITTERY, ME:

43.079420°

DESCRIPTION OF WORK:

Maintenance dredge by mechanical means up to 141,772 cubic yards of silt and sand from 19 locations, each an existing dry dock or berth site, totaling approximately 810,523 square feet, at an existing naval shipyard facility on Seavey Island in the Piscataqua River at Kittery, Maine. Dredge depths at the identified locations vary from -10’ to -38’ MLLW with up to a 2’ allowable overdredge. All dredged material will be disposed of at an upland, non-wetland location. This work is shown on the attached plans entitled “PORTSMOUTH NAVAL

Project Description Continued on Page 2

Project Description Continued from Page 1

SHIPYARD, NRPA TIER III PERMIT APPLICATION, MAINTENANCE DREDGING” in one sheet undated and “PORTSMOUTH NAVAL SHIPYARD, MAINTENANCE DREDGING AT BERTHS AND DRY DOCKS” in 14 sheets undated.

PLEASE NOTE THE FOLLOWING GENERAL

AND SPECIAL CONDITIONS FOR

DEPARTMENT OF THE ARMY

GENERAL PERMIT

NO. NAE-2013-00743

GENERAL CONDITIONS

23. Soil Erosion, Sediment and Turbidity Controls

a. Adequate sedimentation and erosion control management measures, practices and devices, such as phased construction, installation of sediment control barriers (i.e. silt fence, vegetated filter strips, geotextile silt fences, erosion control mixes, hay bales or other devices) downhill of all exposed areas, retention of existing vegetated buffers, application of temporary mulching during construction, and permanent seeding and stabilization 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.

b. Temporary sediment control barriers shall be removed upon completion of work, but not until all disturbed areas are permanently stabilized. The sediment collected by these sediment barriers shall be removed and placed at an upland location and stabilized to prevent its later erosion into a waterway or wetland.

c. All exposed soil and other fills shall be permanently stabilized at the earliest practicable date .

33. The permittee shall assure that a copy of this permit is at the work site whenever work is being performed and that all personnel performing work at the site of the work authorized by this permit are fully aware of the terms and conditions of the permit. This permit, including its drawings and any appendices and other attachments, shall be made a part of any and all contracts and sub-contracts for work which affects areas of Corps of Engineers' jurisdiction at the site of the work authorized by this permit. This shall be done by including the entire permit in the specifications for the work. If the permit is issued after construction specifications but before receipt of bids or quotes, the entire permit shall be included as an addendum to the specifications. The term "entire permit" includes permit amendments. Although the permittee may assign various aspects of the work to different contractors or sub-contractors, all contractors and sub-contractors shall be obligated by contract to comply with all environmental protection provisions of the entire permit, and no contract or sub-contract shall require or allow unauthorized work in areas of Corps of Engineers jurisdiction.

45. Duration of Authorization.

a. These GPs expire on October 14, 2025 unless otherwise specifically indicated in an individual authorization letter. Activities authorized under these GPs that have either commenced or are under contract to commence in reliance upon this authorization will have an additional year from the expiration date to complete the work. The permittee must be able to document to the Corps’ satisfaction that the activity commenced or was under contract to commence by the expiration date of these GPs. If work is not completed within the one year extended timeframe, the permittee must contact the Corps. The Corps may issue a new authorization, provided the activity meets the applicable terms and conditions of the Maine GPs that are in effect at the time.

b. Activities authorized under these GPs will remain authorized until these GPs expire, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 325.2(e)(2). Activities completed under the SV or PCN authorizations of these GPs will continue to be authorized after its expiration date.

SPECIAL CONDITIONS

1. This authorization requires you to 1) notify us before beginning work so we may inspect the project, and 2) submit a Compliance Certification Form. You must complete and return the enclosed Work Start Notification Form(s) to this office at least two weeks before the anticipated starting date. You must complete and return the enclosed Compliance Certification Form within one month following the completion of the authorized work and any required mitigation (but not mitigation monitoring, which requires separate submittals).

2. For any disposal of dredge material on the upland, the scheduling of dredging and dewatering shall be such that the capacity of the dewatering area is not exceeded under any circumstances. This permit does not authorize the disposal of dredge material into wetlands.

3. The First Coast Guard District, Local Notice to Mariners Office, (617) 223-8356, and Aids to Navigation Office, (617) 223-8347, shall be notified at least ten working days in advance of the intended start date of the location and estimated duration of the dredging and disposal operations.

4. The U.S. Coast Guard, Sector Northern New England, Waterways Management Section, (207) 347-5026, shall be notified at least ten working days in advance of the intended start date of the location and estimated duration of the dredging and disposal operations.

5. Dredging operations shall be conducted between March 15 and June 30 of any year in order to minimize potential impacts to winter flounder spawning and egg development habitat, and prey species for federally managed fish species.

6. This permit for does not eliminate the need to obtain local harbormaster or approval or conform to local harbor management plans.

7. In order to minimize potential impacts to Essential Fish Habitat (EFH), the permittee shall implement the conservation recommendations resulting from EFH consultation with the National Marine Fisheries Service (NMFS), referenced in the attached consultation letter dated “September 16, 2020”.

Regulatory Division October 28, 2020

CENAE-RDC

Trey Chabot Portsmouth Naval Shipyard Bldg 59 F1 2 Portsmouth, NH 03804-5000

Dear Mr. Chabot:

This concerns Department of the Army permit, number NAE-2013-00743, issued October 14, 2020, which authorized maintenance dredging by mechanical means of up to 141,772 cubic yards of silt and sand from 19 locations, each an existing dry dock or berth site, totaling approximately 810,523 square feet, at an existing naval shipyard facility on Seavey Island in the Piscataqua River at Kittery, Maine.

In accordance with your request, Special Condition 5 of the permit is hereby amended as follows:

5. Dredging operations shall be conducted between November 9 and March 14 of any year in order to minimize potential impacts to winter flounder spawning and egg development habitat, and prey species for federally managed fish species.

All other conditions of the original permit remain in full force and effect.

We continually strive to improve our customer service. In order for us to better serve you, we would appreciate your completing our Customer Service Survey located at http://per2.nwp.usace.army.mil/survey.html

BY AUTHORITY OF THE SECRETARY OF THE ARMY:

For Frank J. Del Giudice Chief, Permits & Enforcement Section Regulatory Division http://per2.nwp.usace.army.mil/survey.html

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

17 STATE HOUSE STATION AUGUSTA, MAINE 04333-0017

DEPARTMENT ORDER

IN THE MATTER OF

DEPARTMENT OF THE NAVY ) SITE LOCATION OF DEVELOPMENT ACT

Kittery, York County ) NATURAL RESOURCES PROTECTION ACT

MAINTENANCE DREDGE ) COASTAL WETLAND ALTERATION

FACILITY LOCATIONS ) WATER QUALITY CERTIFICATION

L-21179-26-CC-M (approval) ) MINOR REVISION

L-21179-4E-CD-N (approval) ) FINDINGS OF FACT AND ORDER

Pursuant to the provisions of 38 M.R.S. §§ 481–489-E 38, M.R.S. §§ 480-A–480-JJ, and

Section 401 of the Federal Water Pollution Control Act (33 U.S.C. § 1341), and Chapters 310 and 315 of Department rules, the Department of Environmental Protection has considered the application of the DEPARTMENT OF THE NAVY with the supportive data, agency review comments, and other related materials on file and FINDS THE FOLLOWING FACTS:

1. PROJECT DESCRIPTION:

A. History of Project: In Department Order #L-21179-26-A-N, dated March 6, 2003, the Department approved the construction of a new Bachelors Enlisted Quarters and other existing facilities at the Portsmouth Naval Shipyard under the Site Location of

Development Act (Site Law). Previous Department Orders had been issued approving various projects under the Natural Resources Protection Act (NRPA) and the Coastal

Zone Management Act. Subsequent Department Orders have approved numerous new projects and modifications under both the Site Law and NRPA.

In Department Order #L-21179-26-AZ-M/L-21179-4E-BA-N, dated June 20, 2013, the

Department approved the request to perform maintenance dredging of eleven berths and dry dock entrances and to dispose of dredged material at an upland location. The applicant proposes to dredge approximately 71,000 cubic yards of material, composed primarily of silt and fine-grained sand.

B. Summary: The applicant initially identified the subtidal areas along the western perimeter of the Shipyard that line the 11 berths and three dry dock entrances that must be maintained to ensure the safe docking and undocking of submarines, as well as to ensure their safe movement through this portion of the Shipyard. The applicant is seeking approval to continue maintenance dredging activities along the entire lengths of the berths and dry dock entrances of the Shipyard, totaling 810,573 feet. These sites are summarized in the table, Proposed Maintenance Dredging Summary, found in the

Activity Description of the application. Expanded berthing areas and deeper drafts at some of the berths are required to accommodate the larger Virginia class submarines scheduled for maintenance at the Shipyard. Included in this overall area is approximately

67,350 square feet of coastal wetland within the footprint of the Super Flood Basin, L-21179-26-CC-M/L-21179-4E-CD-N 2 of 11 previously approved for alteration in Department Order #L-21179-26-BZ-N/L-21179-4E-

CA-N, dated March 7, 2019. Hydrographic surveys of the berthing areas indicate that only a portion of each area will actually require dredging.

Based on the operational needs of the Shipyard, the applicant is seeking authorization to dredge within these areas, as conditions warrant. The areas to be dredged will be prioritized and the work contracted as the budget allows. For this reason, the applicant is requesting a 10-year permit.

The applicant has identified approximately 326,570 square feet (7.5 acres) along Berths

2-7 and 11-14 and the entrances to Dry Docks 2 and 3 which require dredging at this time. The proposed project would remove approximately 141,770 cubic yards of material, composed of silt and fine-grained sand. The depth of each location will vary, from -10 to -38 mean low water, depending on the vessels expected to use the berths and dry docks. The applicant is also seeking approval to dredge an additional two feet of allowable over dredge. The applicant proposes to remove material by mechanical means with barge-mounted equipment. Dredged material will be dewatered on a barge scow and amended with cement, wood chips, or other bulking material to solidify the material before being transported to an upland location. The applicant proposes to ultimately dispose of the dredged material at a licensed landfill facility.

The project is shown on a set of plans, the first of which is entitled, “Maintenance

Dredging at Berths and Dry Docks,” prepared by NAVFAC, and dated March 27, 2020.

The Portsmouth Naval Shipyard is located in the Town of Kittery.

C. Current Use of the Site: The Shipyard is a repair, maintenance and overhaul facility for U.S. Navy submarines.

2. EXISTING SCENIC, AESTHETIC, RECREATIONAL OR NAVIGATIONAL USES:

The NRPA, in 38 M.R.S. § 480-D(1), requires the applicant to demonstrate that the proposed project will not unreasonably interfere with existing scenic, aesthetic, recreational and navigational uses.

The proposed project is located in the Piscataqua River, which is a scenic resource visited by the general public, in part, for the use, observation, enjoyment and appreciation of its natural and cultural visual qualities. There will be no permanent changes to the scenic and aesthetic values of the river, because dredging activities will take place in the subtidal area around the Shipyard. Dredging equipment will be in the water for no more than the period November through April of any given year. Based on the information submitted in the application, the Department determined that the location and scale of the proposed activity is compatible with the existing visual quality and landscape characteristics found within the viewshed of the scenic resource in the project area.

The Department staff utilized the Department’s Visual Impact Assessment Matrix in its evaluation of the proposed project and the Matrix showed an acceptable potential visual

L-21179-26-CC-M/L-21179-4E-CD-N 3 of 11 impact rating for the proposed project. Based on the information submitted in the application and the visual impact rating, the Department determined that the location and scale of the proposed activity is compatible with the existing visual quality and landscape characteristics found within the viewshed of the scenic resource in the project area.

The Department of Marine Resources (DMR) reviewed the project and stated that the proposed project should not cause any significant adverse impact to navigation or recreation based on the nature of the project and its location.

The Department finds that the proposed activity will not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses of the protected natural resource.

3. SOIL EROSION:

The proposed project will be performed within the subtidal area along berths and dry dock entrances located along the western perimeter of the Shipyard. The Department did not find any issues involving the erosion of sediment or natural transfer of soil.

The Department finds that the activity will not cause unreasonable erosion of soil or sediment nor unreasonably inhibit the natural transfer of soil from the terrestrial to the marine or freshwater environment.

4. HABITAT CONSIDERATIONS:

The NRPA, in 38 M.R.S. § 480-D(3), requires the applicant to demonstrate that the proposed project will not unreasonably harm significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life.

Department staff reviewed a Geographic Information System (GIS) database that contains site-specific information on existing natural resources provided by both the

DMR and the Department of Inland Fisheries and Wildlife (MDIFW). The GIS database indicates that there are no Significant Wildlife Habitats, as defined in the NRPA, located at any of the project sites or along the western perimeter of the Shipyard.

Department Order #L-21179-26-AZ-M/L-21179-4E-BA-N found that most of the benthic organisms utilizing the proposed dredge area habitats are common, ubiquitous species which will recolonize after dredging is completed. That Order also found that lobster densities in the project area meet or exceed the DMR guideline of 0.1 lobster/square meter, and to mitigate for the possible loss of lobsters at these higher density locations, that Order required the applicant to implement its 2001 Lobster Resource Mitigation

Plan.

The application included a copy of the Lobster Mitigation Plan, revised October 25, 2018, which outlines the trapping and disposition of legal and sub-legal lobsters and the

L-21179-26-CC-M/L-21179-4E-CD-N 4 of 11 catch effectiveness. This plan, which was reviewed and approved in Department Order

#L-21179-26-BZ-B/L-21179-4E-CA-N, dated March 8, 2019, establishes that when river bottom water temperatures are greater than 5° C, lobster mitigation efforts are required, and will continue until a catch rate threshold of 0.1 to 0.5 lobsters per trap per night is reached. Dredging operations must begin within two weeks of completion of the trapping operations. If dredging is not initiated within that time, a second lobster relocation effort must be conducted. In comments dated, July 16, 2020, DMR stated that the lobster relocation plan will need to be coordinated with the DMR Marine Patrol. DMR also recommended that all dredging operations be conducted between November 8 and April

8 of any given year to minimize potential adverse impacts to migrating diadromous fish and other marine resources.

A report summarizing the results of the lobster trapping and relocation effort must be submitted to the Department by December 31 of the calendar year in which trapping and relocation efforts were undertaken.

The Department finds that the activity will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life provided that dredging is conducted between November 8 and April 8 of any given year and provided that dredging is initiated within two weeks following the end of lobster trapping operations. If dredging is not initiated within that time, a second lobster relocation effort must be conducted.

5. WATER QUALITY CONSIDERATIONS:

The NRPA, in 38 M.R.S. § 480-D(5), requires the applicant to demonstrate that the proposed project will not violate any state water quality law, including those governing the classification of the State’s waters.

The waters that are or may be affected by the proposed project are currently classified (38

M.R.S. § 469(8)(C)(1)) as Class SC. As set forth in 38 M.R.S. § 465-B(3), Class SC waters must be of such quality that they are suitable for recreation in and on the water, fishing, aquaculture, propagation and restricted harvesting of shellfish, industrial process and cooling water supply, hydroelectric power generation, navigation and as a habitat for fish and other estuarine and marine life, and that discharges to these waters may cause some changes to estuarine and marine life provided that the receiving waters are of sufficient quality to support all species of fish indigenous to the receiving waters and maintain the structure and function of the resident biological community.

As discussed in Finding 4, the waters that would be affected by the dredging project have limited use by fish and other estuarine and marine life but does provide habitat for lobsters. Based on the evidence presented in the application, the Department finds that the applicant has demonstrated that the dredging project will maintain and protect existing uses and the level of water quality necessary to protect those existing uses, will protect the existing water quality of affected SC waters, will not significantly impair the

L-21179-26-CC-M/L-21179-4E-CD-N 5 of 11 viability of existing estuarine and marine life, and will not result in a significant degradation of existing recreation, fishing and commercial harvesting of such estuarine and marine species.

6. WETLANDS AND WATERBODIES PROTECTION RULES:

The applicant proposes to directly alter approximately 326,572 square feet of coastal wetland to dredge sites along the western perimeter of the Shipyard. Of this amount, approximately 22,400 square feet has not been previously approved for alteration in earlier Department Orders.

The Wetland and Waterbodies Protection Rules, 06-096 C.M.R. ch. 310 (effective

January 26, 2009), interpret and elaborate on the NRPA criteria for obtaining a permit.

The rules guide the Department in its determination of whether a project’s impacts would be unreasonable. A proposed project would generally be found to be unreasonable if it would cause a loss in wetland area, functions and values and there is a practicable alternative to the project that would be less damaging to the environment. Each application for a NRPA permit that involves a coastal wetland alteration must provide an analysis of alternatives in order to demonstrate that a practicable alternative does not exist.

A. Avoidance. In the review of whether the potential impacts of a proposed project are unreasonable, the Department analyzed whether there are any practicable alternatives to the proposed activity that would be less damaging to the environment, in accordance with the Department’s Wetlands and Waterbodies Protection Rules, Chapter 310 §5(A).

The application included an alternatives analysis that considered the no-action alternative. The project need for the proposed maintenance dredging is to provide safe operating depths for the berths and dry dock entrances at the Shipyard. The applicant submitted a hydrographic survey that identified shoaling conditions at levels which will inhibit the safe operation of the berths and dry dock entrances. The applicant considered the no-action alternative and noted that taking no action to clear the berth areas of accumulated sediment would prohibit the safe use of these facilities. The no-action alternative was dismissed by the applicant because it did not meet the project need of providing safe operating depths for the berths and dry dock entrances. The Department finds the applicant’s evaluation and dismissal of the no-action alternative as impracticable to be convincing.

The applicant noted that while use of a hopper dredge is more efficient than a mechanical dredge, mechanical dredging is less damaging to the environment with respect to entrainment and suspension of fine-grained sediment. In addition, use of a mechanical dredge provides greater maneuverability around the Shipyard, and is better able to shape and maintain the 3:1 side slopes proposed at several locations. The Department finds that use of a mechanical dredge would be less damaging to the environment despite the longer time required to complete each dredge event.

L-21179-26-CC-M/L-21179-4E-CD-N 6 of 11

The Department further finds the applicant’s determination for using a mechanical dredge as the most practicable dredging method to be convincing.

Due to the irregular surface created when dredging with a bucket, two feet of over dredge is required to ensure that the entire bottom of the dredge area is clear to the appropriate depth required at each location. The Department finds that the applicant cannot practicably reduce the scope of the proposed dredge and still meet the project need, and that the depth of the dredge project is consistent with previous Department Orders.

B. Minimal Alteration. The applicant submitted hydrographic surveys of the berths and dry dock entrances which indicate that the areas proposed to be dredged are no larger than the footprint of the berths and dry dock entrances and that the volume of material needed be removed is the minimum amount necessary to meet the project need. As discussed in Finding 4, removing bottom material will not permanently alter the characteristics of the existing bottom sediment and habitat characteristics and therefore minimizes the impact to marine fisheries. Dredging is proposed during the winter to minimize the impacts to fisheries and habitat. Given the scope of the proposed project and the operational needs of the Shipyard, the applicant will conduct dredging operations as conditions warrant and the budget allows. For this reason, the applicant anticipates the proposed project will be conducted over several years and is requesting a 10-year permit.

Based on the conclusions of the alternatives analyses above, the Department concurs with the applicant that the amount of coastal wetland to be altered by the proposed project is the minimum amount necessary to meet the stated project need and purpose.

C. Compensation. In accordance with Chapter 310, compensation may be required to achieve the goal of no net loss of wetland functions and values. Based on the Site

Condition Report, the applicant has demonstrated that the proposed dredge will not permanently alter the characteristics of the project area, given that several areas have been previously dredged. Based on comments from DMR, the Department finds that the impacts to lobster habitat from the proposed project will be temporary and not significant.

Therefore, no compensation is required.

The Department finds that the applicant has avoided and minimized coastal wetland impacts to the greatest extent practicable, and that the proposed project represents the least environmentally damaging alternative that meets the overall purpose of the project.

7. OTHER CONSIDERATIONS:

The dredged material will be dewatered and mixed with cement, wood chips, or other bulking material as needed to allow vehicular transportation and disposal in accordance with Federal and State regulations. The mixed material will be transported to a licensed solid waste landfill facility, in accordance with the Maine Solid Waste Management

Regulations, following testing of the combined material at the frequency, and for the constituents, required by the landfill that will accept this material.

L-21179-26-CC-M/L-21179-4E-CD-N 7 of 11

The Department did not identify any other issues involving existing scenic, aesthetic, or navigational uses, soil erosion, habitat or fisheries, the natural transfer of soil, natural flow of water, water quality, or flooding. The Department reserves the right to reopen review of this project or to reconsider the 10-year approval period if new information warrants a change in the Finding of Fact.

Based on its review of the application, the Department finds the requested minor revision to the Site Law and in accordance with all relevant Departmental standards. All other findings of fact, conclusions and conditions remain as approved in Department Order #L-

21179-26-A-N, and subsequent Orders.

BASED on the above findings of fact, and subject to the conditions listed below, the Department makes the following conclusions pursuant to 38 M.R.S. §§ 480-A–480-JJ and Section 401 of the

Federal Water Pollution Control Act (33 U.S.C. § 1341):

A. The proposed activity will not unreasonably interfere with existing scenic, aesthetic, recreational, or navigational uses.

B. The proposed activity will not cause unreasonable erosion of soil or sediment.

C. The proposed activity will not unreasonably inhibit the natural transfer of soil from the terrestrial to the marine or freshwater environment.

D. The proposed activity will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine, or marine fisheries or other aquatic life provided that dredging operations are conducted within the period of

November 8 and April 8 of any given year; and dredging is initiated within two weeks following the end of required lobster trapping operations, and if dredging is not initiated at that time, a second lobster relocation effort is conducted as discussed in Finding 4.

E. The proposed activity will not unreasonably interfere with the natural flow of any surface or subsurface waters.

F. The proposed activity will not violate any state water quality law including those governing the classifications of the State's waters.

G. The proposed activity will not unreasonably cause or increase the flooding of the alteration area or adjacent properties.

H. The proposed activity is not on or adjacent to a sand dune.

I. The proposed activity is not on an outstanding river segment as noted in 38 M.R.S. §

480-P.

L-21179-26-CC-M/L-21179-4E-CD-N 8 of 11

BASED on the above findings of fact, and subject to the conditions listed below, the Department makes the following conclusions pursuant to 38 M.R.S. §§ 481–489-E:

A. The applicant has provided adequate evidence of financial capacity and technical ability to develop the project in a manner consistent with state environmental standards.

B. The applicant has made adequate provision for fitting the development harmoniously into the existing natural environment and the development will not adversely affect existing uses, scenic character, air quality, water quality or other natural resources in the municipality or in neighboring municipalities.

C. The proposed development will be built on soil types which are suitable to the nature of the undertaking and will not cause unreasonable erosion of soil or sediment nor inhibit the natural transfer of soil.

D. The proposed development meets the standards for storm water management in 38

M.R.S. § 420-D and the standard for erosion and sedimentation control in 38 M.R.S. §

420-C.

E. The proposed development will not pose an unreasonable risk that a discharge to a significant groundwater aquifer will occur.

F. The applicant has made adequate provision of utilities, including water supplies, sewerage facilities and solid waste disposal required for the development and the development will not have an unreasonable adverse effect on the existing or proposed utilities in the municipality or area served by those services.

G. The activity will not unreasonably cause or increase the flooding of the alteration area or adjacent properties nor create an unreasonable flood hazard to any structure.

THEREFORE, the Department APPROVES the above noted application of the DEPARTMENT

OF THE NAVY to dredge along the berths and dry dock entrances of the Shipyard, as described in Finding 1, SUBJECT TO THE ATTACHED CONDITIONS, and all applicable standards and regulations:

1. Standard Conditions of Approval, a copy attached.

2. The applicant shall take all necessary measures to ensure that its activities or those of its agents do not result in measurable erosion of soil on the site during the construction of the project covered by this approval.

3. Severability. The invalidity or unenforceability of any provision, or part thereof, of this

License shall not affect the remainder of the provision or any other provisions. This

License shall be construed and enforced in all respects as if such invalid or unenforceable provision or part thereof had been omitted.

L-21179-26-CC-M/L-21179-4E-CD-N 9 of 11

FILED

August 3, 2020

State of Maine

Board of Environmental Protection

4. All dredging operations shall be performed between November 8 and April 8 of any given year.

5. If dredging is not initiated within two weeks of the conclusion of any required lobster relocation effort, a second lobster relocation effort shall be conducted prior to commencement of dredging.

6. The applicant shall submit a report summarizing the results of the lobster trapping and relocation effort to the Department by December 31 of the calendar year in which any trapping and relocation efforts were taken.

7. This Order shall expire ten years after the date it is filed with the Board of Environmental

Protection, unless the Department reopens the review of this project based on new information.

THIS APPROVAL DOES NOT CONSTITUTE OR SUBSTITUTE FOR ANY OTHER

REQUIRED STATE, FEDERAL OR LOCAL APPROVALS NOR DOES IT VERIFY

COMPLIANCE WITH ANY APPLICABLE SHORELAND ZONING ORDINANCES.

DONE AND DATED IN AUGUSTA, MAINE, THIS 31ST DAY OF JULY, 2020.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

BY:

For: Gerald D. Reid, Commissioner

PLEASE NOTE THE ATTACHED SHEET FOR GUIDANCE ON APPEAL PROCEDURES.

RLG/L21179CCMCDN/ATS#86067, 86068

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DEP SITE LOCATION OF DEVELOPMENT (SITE) STANDARD CONDITIONS

STRICT CONFORMANCE WITH THE STANDARD AND SPECIAL CONDITIONS OF THIS APPROVAL

IS NECESSARY FOR THE PROJECT TO MEET THE STATUTORY CRITERIA FOR APPROVAL.

A. Approval of Variations from Plans. The granting of this approval is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. Any variation from these plans, proposals, and supporting documents is subject to review and approval prior to implementation. Further subdivision of proposed lots by the applicant or future owners is specifically prohibited without prior approval of the Board, and the applicant shall include deed restrictions to that effect.

B. Compliance with All Applicable Laws. The applicant shall secure and comply with all applicable federal, state, and local licenses, permits, authorizations, conditions, agreements, and orders prior to or during construction and operation, as appropriate.

C. Compliance with All Terms and Conditions of Approval. The applicant shall submit all reports and information requested by the Board or the Department demonstrating that the applicant has complied or will comply with all preconstruction terms and conditions of this approval. All preconstruction terms and conditions must be met before construction begins.

D. Advertising. Advertising relating to matters included in this application shall refer to this approval only if it notes that the approval has been granted WITH CONDITIONS and indicates where copies of those conditions may be obtained.

E. Transfer of Development. Unless otherwise provided in this approval, the applicant shall not sell, lease, assign or otherwise transfer the development or any portion thereof without prior written approval of the Board where the purpose or consequence of the transfer is to transfer any of the obligations of the developer as incorporated in this approval. Such approval shall be granted only if the applicant or transferee demonstrates to the Board that the transferee has the technical capacity and financial ability to comply with conditions of this approval and the proposals and plans contained in the application and supporting documents submitted by the applicant.

F. Time frame for approvals. If the construction or operation of the activity is not begun within four years, this approval shall lapse, and the applicant shall reapply to the Board for a new approval.

The applicant may not begin construction or operation of the development until a new approval is granted. A reapplication for approval may include information submitted in the initial application by reference. This approval, if construction is begun within the four-year time frame, is valid for seven years. If construction is not completed within the seven-year time frame, the applicant must reapply for, and receive, approval prior to continuing construction.

G. Approval Included in Contract Bids. A copy of this approval must be included in or attached to all contract bid specifications for the development.

H. Approval Shown to Contractors. Work done by a contractor pursuant to this approval shall not begin before the contractor has been shown by the developer a copy of this approval.

(2/81)/Revised December 27, 2011

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Natural Resources Protection Act (NRPA)

Standard Conditions

THE FOLLOWING STANDARD CONDITIONS SHALL APPLY TO ALL PERMITS GRANTED

UNDER THE NATURAL RESOURCES PROTECTION ACT, 38 M.R.S. §§ 480-A ET SEQ., UNLESS

OTHERWISE SPECIFICALLY STATED IN THE PERMIT.

A. Approval of Variations From Plans. The granting of this permit is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. Any variation from these plans, proposals, and supporting documents is subject to review and approval prior to implementation.

B. Compliance With All Applicable Laws. The applicant shall secure and comply with all applicable federal, state, and local licenses, permits, authorizations, conditions, agreements, and orders prior to or during construction and operation, as appropriate.

C. Erosion Control. The applicant shall take all necessary measures to ensure that his activities or those of his agents do not result in measurable erosion of soils on the site during the construction and operation of the project covered by this Approval.

D. Compliance With Conditions. Should the project be found, at any time, not to be in compliance with any of the Conditions of this Approval, or should the applicant construct or operate this development in any way other the specified in the Application or Supporting Documents, as modified by the Conditions of this Approval, then the terms of this Approval shall be considered to have been violated.

E. Time frame for approvals. If construction or operation of the activity is not begun within four years, this permit shall lapse and the applicant shall reapply to the Board for a new permit. The applicant may not begin construction or operation of the activity until a new permit is granted. Reapplications for permits may include information submitted in the initial application by reference. This approval, if construction is begun within the four-year time frame, is valid for seven years. If construction is not completed within the seven-year time frame, the applicant must reapply for, and receive, approval prior to continuing construction.

F. No Construction Equipment Below High Water. No construction equipment used in the undertaking of an approved activity is allowed below the mean high water line unless otherwise specified by this permit.

G. Permit Included In Contract Bids. A copy of this permit must be included in or attached to all contract bid specifications for the approved activity.

H. Permit Shown To Contractor. Work done by a contractor pursuant to this permit shall not begin before the contractor has been shown by the applicant a copy of this permit.

Revised September 2016

OCF/90-1/r95/r98/r99/r00/r04/r12/r18

DEP INFORMATION SHEET

Appealing a Department Licensing Decision

Dated: November 2018 Contact: (207) 287-2452

SUMMARY

There are two methods available to an aggrieved person seeking to appeal a licensing decision made by the

Department of Environmental Protection’s (DEP) Commissioner: (1) an administrative process before the Board of Environmental Protection (Board); or (2) a judicial process before Maine’s Superior Court. An aggrieved person seeking review of a licensing decision over which the Board had original jurisdiction may seek judicial review in Maine’s Superior Court.

A judicial appeal of final action by the Commissioner or the Board regarding an application for an expedited wind energy development (35-A M.R.S. § 3451(4)) or a general permit for an offshore wind energy demonstration project (38 M.R.S. § 480-HH(1)) or a general permit for a tidal energy demonstration project (38

M.R.S. § 636-A) must be taken to the Supreme Judicial Court sitting as the Law Court.

This information sheet, in conjunction with a review of the statutory and regulatory provisions referred to herein, can help a person to understand his or her rights and obligations in filing an administrative or judicial appeal.

I. ADMINISTRATIVE APPEALS TO THE BOARD

LEGAL REFERENCES

The laws concerning the DEP’s Organization and Powers, 38 M.R.S. §§ 341-D(4) & 346; the Maine

Administrative Procedure Act, 5 M.R.S. § 11001; and the DEP’s Rules Concerning the Processing of

Applications and Other Administrative Matters (“Chapter 2”), 06-096 C.M.R. ch. 2.

DEADLINE TO SUBMIT AN APPEAL TO THE BOARD

The Board must receive a written appeal within 30 days of the date on which the Commissioner's decision was filed with the Board. Appeals filed more than 30 calendar days after the date on which the

Commissioner's decision was filed with the Board will be dismissed unless notice of the Commissioner’s license decision was required to be given to the person filing an appeal (appellant) and the notice was not given as required.

HOW TO SUBMIT AN APPEAL TO THE BOARD

Signed original appeal documents must be sent to: Chair, Board of Environmental Protection, 17 State

House Station, Augusta, ME 04333-0017. An appeal may be submitted by fax or e-mail if it contains a scanned original signature. It is recommended that a faxed or e-mailed appeal be followed by the submittal of mailed original paper documents. The complete appeal, including any attachments, must be received at

DEP’s offices in Augusta on or before 5:00 PM on the due date; materials received after 5:00 pm are not considered received until the following day. The risk of material not being received in a timely manner is on the sender, regardless of the method used. The appellant must also send a copy of the appeal documents to the Commissioner of the DEP; the applicant (if the appellant is not the applicant in the license proceeding at issue); and if a hearing was held on the application, any intervenor in that hearing process. All of the information listed in the next section of this information sheet must be submitted at the time the appeal is filed.

Appealing a Commissioner’s Licensing Decision November 2018

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INFORMATION APPEAL PAPERWORK MUST CONTAIN

Appeal materials must contain the following information at the time the appeal is submitted:

1. Aggrieved Status. The appeal must explain how the appellant has standing to maintain an appeal. This requires an explanation of how the appellant may suffer a particularized injury as a result of the

Commissioner’s decision.

2. The findings, conclusions, or conditions objected to or believed to be in error. The appeal must identify the specific findings of fact, conclusions regarding compliance with the law, license conditions, or other aspects of the written license decision or of the license review process that the appellant objects to or believes to be in error.

3. The basis of the objections or challenge. For the objections identified in Item #2, the appeal must state why the appellant believes that the license decision is incorrect and should be modified or reversed. If possible, the appeal should cite specific evidence in the record or specific licensing requirements that the appellant believes were not properly considered or fully addressed.

4. The remedy sought. This can range from reversal of the Commissioner's decision on the license or permit to changes in specific permit conditions.

5. All the matters to be contested. The Board will limit its consideration to those matters specifically raised in the written notice of appeal.

6. Request for hearing. If the appellant wishes the Board to hold a public hearing on the appeal, a request for public hearing must be filed as part of the notice of appeal, and must include an offer of proof in accordance with Chapter 2. The Board will hear the arguments in favor of and in opposition to a hearing on the appeal and the presentations on the merits of an appeal at a regularly scheduled meeting. If the

Board decides to hold a public hearing on an appeal, that hearing will then be scheduled for a later date.

7. New or additional evidence to be offered. If an appellant wants to provide evidence not previously provided to DEP staff during the DEP’s review of the application, the request and the proposed evidence must be submitted with the appeal. The Board may allow new or additional evidence, referred to as supplemental evidence, to be considered in an appeal only under very limited circumstances. The proposed evidence must be relevant and material, and (a) the person seeking to add information to the record must show due diligence in bringing the evidence to the DEP’s attention at the earliest possible time in the licensing process; or (b) the evidence itself must be newly discovered and therefore unable to have been presented earlier in the process. Specific requirements for supplemental evidence are found in Chapter 2 § 24.

OTHER CONSIDERATIONS IN APPEALING A DECISION TO THE BOARD

1. Be familiar with all relevant material in the DEP record. A license application file is public information, subject to any applicable statutory exceptions, and is made easily accessible by the DEP.

Upon request, the DEP will make application materials available during normal working hours, provide space to review the file, and provide an opportunity for photocopying materials. There is a charge for copies or copying services.

2. Be familiar with the regulations and laws under which the application was processed, and the procedural rules governing your appeal. DEP staff will provide this information on request and answer general questions regarding the appeal process.

3. The filing of an appeal does not operate as a stay to any decision. If a license has been granted and it has been appealed, the license normally remains in effect pending the processing of the appeal. Unless a stay of the decision is requested and granted, a license holder may proceed with a project pending the outcome of an appeal, but the license holder runs the risk of the decision being reversed or modified as a result of the appeal.

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WHAT TO EXPECT ONCE YOU FILE A TIMELY APPEAL WITH THE BOARD

The Board will formally acknowledge receipt of an appeal, and will provide the name of the DEP project manager assigned to the specific appeal. The notice of appeal, any materials accepted by the Board Chair as supplementary evidence, any materials submitted in response to the appeal, and relevant excerpts from the

DEP’s application review file will be sent to Board members with a recommended decision from DEP staff.

The appellant, the license holder if different from the appellant, and any interested persons are notified in advance of the date set for Board consideration of an appeal or request for public hearing. The appellant and the license holder will have an opportunity to address the Board at the Board meeting. With or without holding a public hearing, the Board may affirm, amend, or reverse a Commissioner decision or remand the matter to the Commissioner for further proceedings. The Board will notify the appellant, the license holder, and interested persons of its decision.

II. JUDICIAL APPEALS

Maine law generally allows aggrieved persons to appeal final Commissioner or Board…