APPENDIX B1-PERMITS - NWS-2021-246.pdf

Department of Environmental Quality Northwest Region Office

700 NE Multnomah St., Suite 600

Tina Kotek, Governor Portland, OR 97232

(800) 452-

FAX (503) 229-6957

TTY 711

May 19, 2023

William Robinson Civil Engineering Unit - Oakland 1301 Clay Street, Suite 700N Oakland, CA 94612-5203

RE: NWS-2021-246; Cape Disappointment Maintenance Dredge Project Section 401 Water Quality Certification Modification

On September 7, 2021, the Oregon Department of Environmental Quality (DEQ) issued a Clean Water Act Section 401 Water Quality Certification to the United States Coast Guard (USCG, “Applicant”) for flow-lane disposal of sediment in Oregon waters associated with maintenance dredging activities at the USCG Station Cape Disappointment near Ilwaco, Washington.

On March 24, 2023, DEQ received from the USCG a request to modify the existing Certification to increase the authorized dredge volume from 20,000 cubic yards (CY) to 100,000 (CY).

Specifically, the USCG seeks the following changes to the proposed action:

1. Increasing the total volume to be dredged from 20,000 CY total to 20,000 CY annually (average 10,000 CY per event), not to exceed 100,000 CY over the life of the permit.

2. Allow for one dredge episode per year to be conducted in the summer months; every attempt will be made to coordinate the event with the USACE’s annual dredge of the navigation channel that occurs each summer adjacent to our berth.

Pursuant to this request DEQ modifies the September 7, 2021, Certification as noted by underlined text (additions) and strikeouts (deletions) in the following conditions.

Modified Certification Conditions

1) Work Authorized: Work authorized by this Order is limited to the work described in the Joint Permit Application signed on February 25, 2021, and additional application materials (hereafter “the permit application materials”), and the Certification modification request dated March 24, 2023, unless otherwise authorized by DEQ. If the project is operated in a manner not consistent with the project description contained in the permit application materials, the Applicant is not in compliance with this 401 WQC and may be subject to enforcement.

Rule: OAR 340-048-0015 Justification: To ensure the project will comply with water quality standards, DEQ must understand all work involved in the construction and operation of the project.

NWS-2021-246; Cape Disappointment Maintenance Dredge Project Section 401 Water Quality Certification Modification

12) Fish protection/ Oregon Department of Fish and Wildlife timing: Applicant must perform in-water work only within the Oregon Department of Fish and Wildlife preferred time window as specified in the Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources, or as authorized otherwise under a Department of State Lands removal/fill permit. Exceptions to the timing window must be recommended by Oregon Department of Fish and Wildlife and/or the National Marine Fisheries Services as appropriate.

Rule: OAR 340-041-0011 Justification: DEQ must be protective of all water quality standards, including beneficial uses such as fish and aquatic life.

16) Post-Dredge Notification: The Applicant must submit to DEQ dredge disposal report within 60 days of completing annual dredge disposal activities. The Applicant must file with DEQ a report documenting disposal actions initiated during the preceding year. The report is due by March 1, or an alternate date agreed to by DEQ. The report shall include the following items as applicable: turbidity monitoring data, debris monitoring results, disposal dates, volumes, location maps, photographs, and biological observations.

Rule: OAR 340-048-0015 Justification: To ensure the project will comply with water quality standards, DEQ must understand all work involved in the construction and operation of the project.

18) Disposal Methods: This WQC authorizes the disposal of up to 20,000 CY annually (average 10,000 CY per event), not to exceed 100,000 CY over the life of the permit 20,000 cubic yards of sediment over the ten year term of the certification including up to 4,000 cubic yards of material during the first year of authorized disposal activities.

During transit to the disposal locations, the Applicant shall observe the following requirements:

a. Barges shall not be allowed to ground-out during in-water construction;

b. Barges shall be kept free of material that could be blown into the water;

c. Barges shall be filled to a maximum of 80 percent of rated capacity;

d. The Applicant shall consider conditions such as tides, current conditions and wind wherever possible to reduce environmental effects;

e. Whenever possible, dredged material placement will be timed to target slack tide intervals to minimize dispersion of turbidity;

b. All debris greater than two feet foot in dimension must be removed from dredged sediments prior to in-water disposal and transported to an appropriate upland disposal site.

Rule: OAR 340-041-0036, OAR 340-041 Justification: DEQ must ensure that pollution does not enter waterways.

In accordance with the Clean Water Act and Oregon Administrative Rule 340-048-0050 DEQ hereby modifies the September 7, 2021, Certification. The above-referenced conditions are incorporated into the Certification and supersede in entirety each numerically referenced condition.

NWS-2021-246; Cape Disappointment Maintenance Dredge Project Section 401 Water Quality Certification Modification

DEQ is reasonably assured the modified proposed action will comply with water quality standards and other requirements of state law provided actions are performed in accordance with the conditions of the Certification and the modified conditions identified above. All other Certification conditions remain in full force and effect for the duration of the federal permit.

Please keep a copy of this modification letter with your original certification. If you have any questions, please contact Chris Stine at chris.stine@deq.oregon.gov, by phone at 541-686-7810, or at the address on this letterhead.

Sincerely, Steve Mrazik Water Quality Manager Northwest Region ec: Brad Johnson, US Army Corps of Engineers Laura Inouye, Washington Department of Ecology Erin Hale, US Coast Guard

Hale, Erin E CIV USCG FDCC-SEATTLE (USA)

From: BURRIGHT Jeff D * DLCD <Jeff.D.BURRIGHT@dlcd.oregon.gov> Sent: Friday, February 23, 2024 11:42 AM To: Hale, Erin E CIV USCG CEU OAKLAND (USA); TEACH Haley * DEQ;

mitchell_dennis@fws.gov Cc: Tom Hausmann - NOAA Federal; Johnson, Brad A CIV USARMY CENWP (USA); PHIPPS

Lisa * DLCD Subject: [Non-DoD Source] RE: Cape Disappointment

Hi Erin, After discussing this request with Clatsop County, ODFW, and DSL, and in consideration of the DEQ concurrence on the 401, we have determined that the change in volume would not result in coastal effects substantially different from those previously reviewed. It is our determination that the prior existing CZMA concurrence may apply to the expanded volume, and no further review is required at this time.

Best, Jeff

Jeff Burright State-Federal Relations Coordinator | Oregon Coastal Management Program Pronouns: He/Him Oregon Department of Land Conservation and Development 635 Capitol Street NE, Suite 150 | Salem, OR 97301-2540 Cell: 503-991-8479 | Main: 503-373-0050 Jeff.D.Burright@dlcd.oregon.gov | www.oregon.gov/LCD

From: Hale, Erin E CIV USCG CEU OAKLAND (USA) <Erin.E.Hale@uscg.mil> Sent: Thursday, February 22, 2024 10:41 AM To: TEACH Haley * DEQ <Haley.TEACH@deq.oregon.gov>; BURRIGHT Jeff D * DLCD <Jeff.D.BURRIGHT@dlcd.oregon.gov>; mitchell_dennis@fws.gov Cc: Tom Hausmann - NOAA Federal <tom.hausmann@noaa.gov>; Johnson, Brad A CIV USARMY CENWP (USA) <Brad.A.Johnson2@usace.army.mil> Subject: Cape Disappointment

Good morning

Current Status: During our last dredge, performed February 2023, we maxed out the volume allowed on our permits. As of March 2023 we requested modifications to all permits/approvals to allow for an increased volume (up to 100,000 cu yd for the permit). In addition, we asked for allowance to dredge and dispose during the summer.

DMMO - issued concurrence on our request.

USFWS -reinitiation completed and have concurrence.

Ecology/401 issued concurrence on request to dredge the additional volume and the summer event.

Ecology/CZMA is complete for the modification to include the additional volume and summer dredge.

ODEQ/401 - issued concurrence on our request DCLD- Pending NMFS – Pending. Working on issuing a new biological opinion for the reinitiation due to changes in process on their end.

USACE – Pending NMFS and DCLD

It takes us about 45 days to get a contractor on board and on site -even at our fastest pace (and with us in a continuing resolution our funds are tied up a bit / going through a different process we are not working at the fastest pace).

We are having issues getting into our boat haul out and the entrance to the boat station is getting too shallow (having to time things with the tides). We estimate a total of 15,000 cubic yards would need to be removed again in this next event. We missed this years work window while we await all the approvals and are now facing a likely emergency dredge. In discussions with NMFS, USACE, and Ecology a one time out of season dredge is feasible in this situation.

Request: We would like to perform a dredge as soon as possible to remove up to 15,000 cubic yards as a one-off until our permits / approvals can get issued. USFWS, ODEQ and DCLD, do you have any concerns with this one time off season approval for dredging?

Erin

Erin Hale Environmental Protection Specialist US Coast Guard Civil Engineering Unit Oakland 1301 Clay Street, Suite 700N Oakland, CA 94612 571-607-0945

Prepared by:

Dredged Material Management Office Seattle District, US Army Corps of Engineers

Memorandum For Record March 23, 2023

Subject: DMMP Dredge Volume Revision for Maintenance Dredging of the U.S. Coast Guard Station Cape Disappointment in Ilwaco, Washington (NWS-2021-246).

Introduction This memorandum reflects the consensus determination of the Dredged Material Management Program (DMMP) agencies (U.S. Army Corps of Engineers [USACE], Washington Departments of Ecology [Ecology] and Natural Resources [DNR], and the Environmental Protection Agency [EPA]) regarding a dredge volume revision to proposed dredging at the U.S. Coast Guard (USCG) Cape Disappointment Station.

Background The USCG Cape Disappointment Station is located on a peninsula in Baker Bay, Pacific County, Ilwaco, Washington. The Station is a federally-owned property in the Columbia River Estuary on the eastern shore of Cape Disappointment. Sediment shoaling is occurring at the Station, restricting vessel access to both travel lift areas and piers required to launch and moor vessels.

The USCG characterized the shoaled areas in 2020 (DMMP, 2021) and in 2021 received a 10-year maintenance dredging permit for up to 20,000 cubic yards (CY) for flow-lane disposal at the Baker Bay disposal site.

The USCG indicated that there has been significantly more infill than expected at the site. The sand spit at the base of Jetty A has been actively receding/eroding since the mid-1990s, with the remnant spit migrating northward toward Station Cape Disappointment. The shoreline for much of the length of Jetty A has become unstable and the USACE is in the process of a shoreline stabilization project to stop further erosion.

Under the 2021 permit, the USCG dredged approximately 2,250 CY in February 2022. Due to a storm, wind events, and the growing sand bar, the areas dredged filled in completely in less than 30 days. They dredged an additional 15,050 CY in February 2023. The site has already infilled more than the 2,700 CY left of the permitted 20,000 CY dredge volume per the 10-year permit (see Photo 1).

The USCG indicated that there is an immediate need to maintain operational depths at the Station in order fulfill their mission and is requesting a volume increase to 100,000 CY for the 10-year maintenance dredging permit.

Cape Disappointment, 2023

Photo 1. Current condition; provided by USCG

Recency Evaluation The Recency period for the 2021 suitability determination goes through October 2027. This recency expiration is still applicable. The requirements for additional characterization needed to extend the suitability further, or issue a new suitability, will be determined prior to the expiration.

Dredge Volume Clarification The SDM includes a proposed dredging volume of 20,000 cy from the lift and pier areas (Figure 1). The 2020 sediment characterization consisted of three field samples (cores) that were composited into one DMMU sample. The results indicated that sediment was 97% sand with low total organic carbon (0.15%).

The large new shoal has some overlap with the characterization area but extends further east (closer to Jetty A). Given site characteristics and the source of the additional material, as well as the visible sand content (shown in Photo 1), the DMMP does not believe the chemical quality of the additional dredged material would be degraded compared to the material characterized in 2020. Accordingly, dredging up to the proposed volume increase of 100,000 CY is allowed per this

SDM.

Figure 1. 2020 sediment characterization areas (DMMP, 2021).

Conclusions On the basis of the existing information, the DMMP agencies are in agreement that a dredge volume up to 100,000 CY is acceptable. Any proposed dredging work after October 2027 or dredge volume greater than 100,000 CY will require additional characterization of the proposed dredged material.

A pre-dredge meeting or conference call is required prior to dredging. A dredging and disposal quality control plan must be developed and submitted to the Regulatory Branch of the Seattle District Corps of Engineers at least 7 days prior to the pre-dredge meeting.

References:

DMMP, 2021. Suitability Determination Memorandum and Antidegradation Assessment for Maintenance Dredging at U.S. Coast Guard Station Cape Disappointment in Ilwaco, Washington (NWS-2021-246). Prepared by the Seattle District Dredged Material Management Office for the Dredged Material Management Program, March 10, 2021.

Agency Signatures:

Date Joy Dunay – Seattle District Corps of Engineers

Date Justine Barton - Environmental Protection Agency

Date Laura Inouye, Ph.D. - Washington Department of Ecology

Date Shannon Soto - Washington Department of Natural Resources

Copies furnished:

DMMP signatories Erin Hale, US Coast Guard Brad Johnson, Seattle District Regulatory Branch Evan Carnes, Seattle District Regulatory Branch

3/23/2023

03/23/2023

03/23/2023

3/23/2023

Hale, Erin E CIV USCG CEU OAKLAND (USA)

From: Hale, Erin E CIV USCG CEU OAKLAND (USA) Sent: Wednesday, August 9, 2023 4:52 PM To: Johnson, Brad A CIV USARMY CENWP (USA) Subject: FW: Cape Disappointment - CZMA Signed By: erin.e.hale@uscg.mil

CZMA note is below for your records.

From: Inouye, Laura (ECY) <Lino461@ECY.WA.GOV> Sent: Wednesday, August 9, 2023 4:47 PM To: Hale, Erin E CIV USCG CEU OAKLAND (USA) <Erin.E.Hale@uscg.mil> Subject: [URL Verdict: Neutral][Non‐DoD Source] RE: Cape Disappointment ‐ CZMA

Ecology’s approach is that if the project is within the original footprint (area and depth), then the original CZM applies. If dredging is going to extend outside of the original footprint, I think a new CZM would apply.

If the old CZM applies, then no action is required on your end.

From: Hale, Erin E CIV USCG CEU OAKLAND (USA) <Erin.E.Hale@uscg.mil> Sent: Wednesday, August 9, 2023 4:38 PM To: Inouye, Laura (ECY) <Lino461@ECY.WA.GOV>; Inouye, Laura (ECY) <Lino461@ECY.WA.GOV> Subject: Cape Disappointment ‐ CZMA

Good afternoon Laura! We received the 401 and a big thank you for pushing that out. Question for you….as I may have errored in my approach. Note I could not find anything related to modifications in the Federal Consistency Procedures ‐ Washington State Coastal Zone Management guidebook.

Program

For CZMA – we had previously submitted an analysis documenting compliance with the WA enforceable policies and goals. From the various definitions in 15 CFR 930 (I extracted a few below) a new or supplemental consistency determination is only required when the activity that will have effects not evaluated at the time of the original consistency determination.

With this it does not appear that a supplemental or new determination would be required. I also do not see anything in the enforceable polices that would push the modification request / additional volume request into a “significant” category or result in substantially different coastal effects and therefore does not seem to meet the “major amendment” based on the CFR definition.

The USCG has therefore determined that the modification is consistent with the previous analysis and therefore consistent with the enforceable policies and goals of the Coastal Zone Management Act.

Question: What do we need to do for this? I see language in the CFR that notification is enough in this type of circumstance but could not find anything in the Ecology guidebook to direct me (and it could be there and I just missed it!).

Regards, Erin

§ 930.46 Supplemental coordination for proposed activities.

The State agency may notify the Federal agency and the Director of proposed activities which the State agency believes should be subject to supplemental coordination. The State agency's notification shall include information supporting a finding of substantially different coastal effects than originally described and the relevant enforceable policies and may recommend modifications to the proposed activity (if any) that would allow the Federal agency to implement the proposed activity consistent with the enforceable policies of the management program. State agency notification under this paragraph (b) does not remove the requirement under paragraph (a) of this section for Federal agencies to notify State agencies.

The term “major amendment” of a federal license or permit activity means any subsequent federal approval that the applicant is required to obtain for modification to the previously reviewed and approved activity and where the activity permitted by issuance of the subsequent approval will affect any coastal use or resource, or, in the case of a major amendment subject to § 930.51(b)(3), affect any coastal use or resource in a way that is substantially different than the description or understanding of effects at the time of the original activity.

The terms “Federal agency activity” and “Federal development project” also include modifications of any such activity or development project which affect any coastal use or resource, provided that, in the case of modifications of an activity or development project which the State agency has previously reviewed, the effect on any coastal use or resource is substantially different than those previously reviewed by the State agency.

(d) Time limits on concurrences. A State agency cannot unilaterally place an expiration date on its concurrence. If a State agency believes that an expiration date is necessary, State and Federal agencies may agree to a time limit. If there is no agreement, later phases of, or modifications to, the activity that will have effects not evaluated at the time of the original consistency determination will require either a new consistency determination, a supplemental consistency determination under § 930.46, or a phased review under § 930.36(d) of this subpart.

Erin Hale Environmental Protection Specialist US Coast Guard Civil Engineering Unit Oakland 1301 Clay Street, Suite 700N Oakland, CA 94612

571-607-0945

STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY

PO Box 47600, Olympia, WA 98504-7600 • 360-407-6000

August 9, 2023

United States Coast Guard ATTN: Will Robinson 1301 Clay Street, Suite 700N Oakland, CA 94612

Re: Water Quality Certification Order No. 21788 (Corps No. NWS-2021-246) USCG Station Cape Disappointment Maintenance Dredge, located within Baker Bay, Pacific County, Washington.

Dear Will Robinson:

On June 9, 2023, the United States Coast Guard (USCG) submitted a request for a Section 401 Water Quality Certification (WQC) under the federal Clean Water Act for the USCG Station Cape Disappointment Maintenance Dredge, Pacific County, Washington.

On behalf of the state of Washington, the Department of Ecology certifies that the work described in the Water Quality Certification Request and supplemental documents complies with applicable provisions of Sections 301, 302, 303, 306, and 307 of the Clean Water Act, as amended, and applicable state laws. This certification is subject to the enclosed Water Quality Certification Order (WQC Order).

Please ensure that anyone doing work under this WQC Order has read, is familiar with, and is able to follow all of the provisions within the attached WQC Order.

If you have any questions about this decision, please contact Laura Inouye at (360) 515-8213.

The enclosed WQC Order may be appealed by following the procedures described within.

Sincerely, Loree’ Randall, Section Manager Federal Permitting Section Shorelands and Environmental Assistance Program

WQC Order No. 21788, Corps No. NWS-2021-246 Aquatics ID No. 135171 August 9, 2023

Enclosure (2)

By certified mail: 9489 0090 0027 6383 6851 06

Sent via e-mail: William.A.Robinson@uscg.mil

E-cc: Evan Carnes, U.S. Army Corps of Engineers Brad Johnson, U.S. Army Corps of Engineers Laura Inouye, Ecology ECYREFEDPERMITS@ecy.wa.gov

In The Matter of Granting a Water Quality Certification to United States Coast Guard pursuant to 33 U.S.C. 1341 (FWPCA § 401), RCW 90.48.120, RCW 90.48.260 and Chapter 173-201A WAC

United States Coast Guard ATTN: Will Robinson 1301 Clay Street, Suite 700N Oakland, CA 94612

WQC Order No. 21788

Corps Reference No. NWS-2021-246

Site Location USCG Station Cape Disappointment Maintenance Dredge, located within Baker Bay, Ilwaco, Pacific County, Washington.

United States Coast Guard (USCG) submitted a request for a Section 401 Water Quality Certification (WQC) under the federal Clean Water Act to the Department of Ecology (Ecology) for the USCG Station Cape Disappointment Maintenance Dredge, Pacific County, Washington. The following required processing dates are listed below:

• On May 8, 2023, USCG submitted a pre-filing meeting request.

• On June 9, 2023, Ecology received a request for Clean Water Section 401 Water Quality Certification.

• On June 13, 2023, Ecology issued a public notice for the project.

The proposed work consists of annual dredging of up to 20,000 cubic yards over a 10-year period from the U.S. Coast Guard Station Cape Disappointment mooring basin, not to exceed 100,000 cubic yards over the life of the project. The proposed dredging would maintain operational depths of the mooring basin to a target depth of -10 feet Mean Lower Low Water (MLLW) with a 2- foot over dredge allowance to -12 feet MLLW. Dredging would occur via hydraulic suction dredge or clamshell dredge from a barge-mounted crane. Dredged material disposal is in Oregon (flow lane of the Columbia River at the Baker Bay Flowlane Disposal or Flowlane Area D) or at a Portland USACOE approved site.

The project is located within Baker Bay, Ilwaco, Pacific County, Washington in Section 9, Township 9N, Range 11W, in WRIA No. 24 (Willapa).

Authorities

In exercising authority under 33 U.S.C. §1341, RCW 90.48.120, and RCW 90.48.260, Ecology has reviewed this WQC request pursuant to the following:

August 9, 2023

1. Conformance with applicable water quality-based, technology-based, and toxic or pretreatment effluent limitations as provided under 33 U.S.C. §§1311, 1312, 1313, 1316, and 1317.

2. Conformance with the state water quality standards contained in Chapter 173-201A WAC and authorized by 33 U.S.C. §1313 and by Chapter 90.48 RCW, and with other applicable state laws; and

3. Conformance with the provision of using all known, available and reasonable methods to prevent and control pollution of state waters as required by RCW 90.48.010.

4. Conformance with Washington’s prohibition on discharges that cause or tend to cause pollution of waters of the state of Washington. RCW 90.48.080.

5. The Project Proponent of the project authorized is responsible for obtaining all other permits, licenses, and certifications that may be required by federal, state, local or tribal authorities.

With this Water Quality Certification Order (WQC Order), Ecology is granting with conditions USCG’s request for a Section 401 Water Quality Certification for the USCG Station Cape Disappointment Maintenance Dredge, located in Baker Bay, Pacific County. Ecology has determined that the proposed discharges will comply with all applicable state water quality and other appropriate requirements of State law, provided the project is conducted in accordance with the WQC request that Ecology received on June 9, 2023, the supporting documents referenced in Table 1 below, and the conditions of this WQC Order.

Table 1 Supporting Documents

Date Received Document Type Title and Date Author

June 9, 2023 Biological Evaluation Final Biological Assessment Maintenance Dredging Project USCG Station Cape Disappointment Baker Bay, Ilwaco, Washington, dated January 2021

Wood Environmental & Infrastructure Solutions, Inc.

June 9, 2023 Joint Aquatic Resource Permit Application

(JARPA)

JARPA dated February 25, 2021

William Robinson, USCG

August 9, 2023

June 9, 2023 Suitability Memorandum

DMMP Dredge Volume Revision for Maintenance Dredging of the U.S.

Coast Guard Station Cape Disappointment in Ilwaco, Washington (NWS-2021-246), dated March 23, 2023

Dredged Material Management Program

(DMMP)

June 9, 2023 Dredge Plan Dredge and Water Quality Plan USCG Cape Disappointment Maintenance Dredging

J.E. McAmis

June 14, 2023 Water Quality Monitoring Protection Plan (WQMPP)

Final Water Quality Monitoring Protection Plan for Dredging at United States Coast Guard Station Cape Disappointment, dated April 19, 2021

Wood Environmental & Infrastructure Solutions, Inc.

July 20, 2023 Eelgrass Mitigation Plan Eelgrass Mitigation and Monitoring Plan, USCG Station Cape Disappointment Maintenance Dredging Project, Pacific County, Washington, dated June

Merkel & Associates, Inc.

Issuance of this Section 401 Water Quality Certification for this proposal does not authorize the USCG to exceed applicable state water quality standards (Chapter 173-201A WAC), ground water quality standards (Chapter 173-200 WAC) or sediment quality standards (Chapter 173-204 WAC) or other appropriate requirements of State law. Furthermore, nothing in this Section 401 Water Quality Certification absolves the USCG from liability for contamination and any subsequent cleanup of surface waters, ground waters, or sediments resulting from project construction or operations.

August 9, 2023

Water Quality Certification Conditions

The following conditions will be incorporated into the Corps permit and strictly adhered to by the USCG. Specific condition justifications and citations are provided below.

A. General Conditions

1. In this WQC Order, the term “Project Proponent” shall mean the USCG and its agents, assignees, and contractors.

• Justification - Ecology needs to identify that conditions of this WQC Order apply to anyone conducting work on behalf of the Project Proponent to ensure compliance with the water quality standards and other applicable state laws.

• Citation - 40 CFR 121.1(j), Chapter 90.48 RCW, RCW 90.48.080, RCW 90.48.120, RCW 90.48.260, Chapter 173-200 WAC, Chapter 173-201A WAC, and WAC 173-225-010.

2. All submittals required by this WQC Order shall be sent to Ecology’s Headquarters Office, Attn:

Federal Permit Manager, via e-mail to fednotification@ecy.wa.gov and cc to Laura.Inouye@ecy.wa.gov. The submittals shall be identified with WQC Order No. 21788 and include the Project Proponent’s name, Corps permit number, project name, project contact, and the contact phone number.

• Justification - Ecology needs to identify where information and submittals are to be submitted to be in compliance with the requirements of this WQC Order.

• Citation - Chapter 90.48 RCW, RCW 90.48.120, RCW 90.48.260, Chapter 173-201A WAC, and

WAC 173-225-010.

3. Work authorized by this WQC Order is limited to the work described in the WQC request package received by Ecology on June 9, 2023, and the supporting documentation identified in Table 1.

• Justification - Ecology has the authority to prevent and control pollution of state waters. By authorizing a discharge into a water of the state, through a WQC, Ecology is certifying the project as proposed will not negatively impact water quality. Therefore, it is imperative the project is conducted as it was presented during the review process. Any deviations from information within the WQC Request package and this WQC Order must be disclosed prior to the initiation of the planned work, and may require a new WQC request.

• Citation - 40 CFR 121.5, 40 CFR 121.10, 40 CFR 121.11, Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.120, RCW 90.48.260, Chapter 173-200 WAC, Chapter 173-201A WAC, Chapter 173-204 WAC, and WAC 173-225-010.

August 9, 2023

4. The Project Proponent shall keep copies of this WQC Order on the job site and readily available for reference by Ecology personnel, the construction superintendent, construction managers and lead workers, and state and local government inspectors.

• Justification - All parties (including on-site contractors) must be aware of and comply with the WQC Order for the protection of water quality.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, Chapter 173-201A WAC, and WAC 173-225-010.

5. The Project Proponent shall provide access to the project site and all mitigation sites upon request by Ecology personnel for site inspections, monitoring, and/or necessary data collection, to ensure that conditions of this WQC Order are being met.

• Justification - Ecology must be able to investigate and inspect construction sites and facilities for compliance with all state rules and laws.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.090, RCW 90.48.120, Chapter 173-201A WAC, and WAC 173-225-010.

6. The Project Proponent shall ensure that all project engineers, contractors, and other workers at the project site with authority to direct work have read and understand relevant conditions of this WQC Order and all permits, approvals, and documents referenced in this WQC Order. The Project Proponent shall provide Ecology a signed statement (see Attachment A for an example) before construction begins.

• Justification - Ecology needs to ensure that anyone conducting work at the project, on behalf of the Project Proponent, are aware of and understand the required conditions of this WQC Order to ensure compliance with the water quality standards and other applicable state laws.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, Chapter 173-201A WAC, and WAC 173-225-010.

7. This WQC Order does not authorize direct, indirect, permanent, or temporary impacts to waters of the state or related aquatic resources, except as specifically provided for in conditions of this WQC Order.

August 9, 2023

• Justification - Ecology has the authority to prevent and control pollution of state waters, and to protect designated uses. By authorizing a discharge into a water of the state, through a water quality certification, Ecology is certifying the project as proposed will not negatively impact state water quality and will comply with the state’s water quality requirements.

Therefore, it is imperative the project is conducted as it was presented during the review process, and as conditioned herein.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.120, Chapter 173-200 WAC, Chapter 173-201A WAC, WAC 173-201A-300(2)(e)(i), WAC 173-201A-310, WAC 173-204-120, and WAC 173-225-010.

8. Failure of any person or entity to comply with the WQC Order may result in the issuance of civil penalties or other actions, whether administrative or judicial, to enforce the state’s water quality standards and the conditions of this WQC Order.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses. Ecology has independent state authority to ensure protection of state water quality.

Civil penalties and other enforcement actions are the primary means of securing compliance with water quality requirements.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.037, RCW 90.48.080, RCW 90.48.120, RCW 90.48.140, RCW 90.48.142, RCW 90.48.144, and WAC 173-225-010.

9. The Project Proponent shall provide Ecology documentation for review before undertaking any major changes to the proposed project that could significantly and adversely affect water quality, other than those project changes required by this WQC Order.

• Justification - Ecology has independent authority to enforce our 401 certification conditions issued through this WQC Order pursuant to RCW 90.48, and has independent state authority to ensure protection of state water quality. In order to ensure the project will comply with water quality standards in the event of any major changes, Ecology must be able to review the scope of work involved in the construction and operation of the project, otherwise all work must stop and a new 401 certification pre-filing meeting, followed by a new WQC request (after requisite 30-days) is required.

• Citation - 40 CFR 121.1(k) and (n), 40 CFR 121.3, 40 CFR 121.5, 40 CFR 121.11, Chapter 90.48 RCW, and Chapter 173-201 WAC.

10. The Project Proponent shall send (per A.2.) a copy of the final Federal permit to Ecology’s Federal Permit Manager within two weeks of receiving it.

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• Justification - This condition is needed to ensure that all the conditions of the WQC Order have been incorporated into the federal permit.

• Citation - 40 CFR 121.10, 40 CFR 121.11, and Chapter 90.48 RCW.

11. This WQC Order will automatically transfer to a new owner or operator if:

a. A Request for Transfer of Order form is completed between the Project Proponent and new owner or operator with the specific transfer date of the WQC Order’s obligations, coverage, and liability and submitted to Ecology per condition A.2. Link to form:

https://apps.ecology.wa.gov/publications/SummaryPages/ECY070695.html;

b. A copy of this WQC Order is provided to the new owner or operator; and

c. Ecology does not notify the new Project Proponent that a new WQC Order is required to complete the transfer.

• Justification – Ecology has independent state authority to ensure protection of state water quality. Ecology needs to ensure that anyone conducting work at the project, including any new owners or operators, are aware of and understand the required conditions of this WQC Order to ensure compliance with the water quality standards and other applicable state laws.

• Citation – 40 CFR 121.5, Chapter 90.48 RCW, RCW 90.48.030, Chapter 173-201A WAC, and WAC 173-225-010.

B. Notification Requirements

1. The following notifications shall be made via phone or e-mail (e-mail is preferred) to Ecology’s Federal Permit Manager via e-mail to fednotification@ecy.wa.gov and cc to Laura.Inouye@ecy.wa.gov. Notifications shall be identified with WQC Order No. 21788 and Corps Reference No. NWS-2021-246, and include the Project Proponent name, project name, project location, project contact and the phone number.

a. Immediately following a violation of state water quality standards or when the project is out of compliance with any conditions of this WQC Order;

b. At least ten (10) days prior to all pre-construction meetings;

c. At least ten (10) days prior to conducting initial in-water work activities; and

d. Within seven (7) days of completion of each in-water work activities.

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• Justification - Ecology has independent state authority to ensure protection of state water quality. Ecology must be aware of when a project starts and ends and whether there are any issues. This allows Ecology to evaluate compliance with the state water quality requirements.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.120, Chapter 173-201A WAC, WAC 173-201A-300 - 330, Chapter 173-204 WAC, and WAC 173-225-010.

2. In addition to the phone or e-mail notification required under B.1.a. above, the Project Proponent shall submit a detailed written report to Ecology within five (5) days that describes the nature of the event, corrective action taken and/or planned, steps to be taken to prevent a recurrence, results of any samples taken, and any other pertinent information.

• Justification - Ecology has independent state authority to ensure protection of state water quality. This condition is intended to assure the Project Proponent remains in full compliance with state water quality requirements for the duration of the project.

• Citation - Chapter 90.48 RCW, RCW 90.48.120, Chapter 173-201A WAC, and WAC 173-225-010.

C. Timing

1. This WQC Order is effective upon issuance of the U.S. Corps of Engineers (Corps) individual permit for this project and will remain valid for the duration of the associated permit for the project.

• Justification – Certifications are required for any license or permit that authorizes an activity that may result in a discharge or fill material into waters. This WQC Order is not valid until the Federal agency issues a permit. Additionally, Ecology needs to be able to specify how long the WQC Order will be in effect.

• Citation – Chapter 90.48 RCW, Chapter 173-201A WAC, and WAC 173-225-010.

2. The following in-water work windows apply to the project:

a. All activities within Baker Bay may be conducted between November 1 and February 15 of any year or the date range consistent with Water Quality Monitoring and Protection Plan listed in Table 1.

• Justification - This condition is reaffirming the project will take place during a time period that will not harm fish or other aquatic species.

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• Citation - Chapter 77.55 RCW, Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300, WAC 173-201A-330, WAC 173-225-010, and Chapter 220-660 WAC.

3. Any project change that requires a new or revised Hydraulic Project Approval (HPA) from the Department of Fish and Wildlife should be sent to Ecology for review before the change is implemented.

• Justification - This condition is reaffirming the project will take place during a time period that will not harm fish or other aquatic species.

• Citation - Chapter 77.55 RCW, Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300, WAC 173-201A-330, WAC 173-225-010, and Chapter

220-660 WAC.

D. Water Quality Monitoring and Criteria

1. This WQC Order does not authorize the Project Proponent to exceed applicable water quality standards beyond the limits established in Chapter 173-201A WAC, except as authorized by this WQC Order.

• Justification - This condition ensures compliance with water quality standards to protect surface waters of the state. Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

2. For in-water activities within marine waters turbidity shall not exceed 5 NTU over background when the background is 50 NTU or less; or a 10 percent increase in turbidity when the background turbidity is more than 50 NTU.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and prevent exceedances of the water quality standards that protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

3. This WQC Order does not authorize the Project Proponent to exceed applicable turbidity standards beyond the limits established in Chapter 173-201A WAC as set forth below, unless otherwise authorized in this WQC Order:

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a. Temporary area of mixing for turbidity established within the state water quality standards for marine waters (WAC 173-201A-210) is as follows:

01. For estuaries or marine waters, the point of compliance for a temporary area of mixing shall be at a radius of one hundred fifty feet from the activity causing the turbidity exceedance.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and prevent exceedances of the water quality standards that protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A

WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

4. The Project Proponent shall implement the Final Water Quality Monitoring Protection Plan for Dredging at United States Coast Guard Station Cape Disappointment (WQMPP), identified in Table 1.

• Justification - This condition is necessary to ensure that the monitoring and BMPs that are proposed by the Project Proponent and authorized by Ecology are conducted to protect water quality. Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

5. If water quality exceedances for turbidity are observed outside the point of compliance, work shall cease immediately and the Project Proponent or the contractor shall assess the cause of the water quality problem and take immediate action to stop, contain, and correct the problem and prevent further water quality turbidity exceedances.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and prevent exceedances of the water quality standards that protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

6. Visible turbidity anywhere beyond the temporary area of mixing (point of compliance) from the activity, shall be considered an exceedance of the standard.

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• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and prevent exceedances of the water quality standards that protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

7. Monitoring results shall be submitted monthly to Ecology’s Federal Permit Manager, per condition A.2.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and prevent exceedances of the water quality standards that protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

8. Ecology may ask or could use its discretionary authority to require the Project Proponent to provide mitigation and/or additional monitoring if the monitoring results indicate that the water quality standards have not been met.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution and ensure that aquatic life and beneficial uses are protected.

• Citation - RCW 90.48, RCW 90.48.010, RCW 90.48.030, RCW 90.48.080, RCW 90.48.120, Chapter 173-201A WAC, 173-201A-300-330 WAC, and Chapter 173-204 WAC.

E. Construction General Conditions

1. All work in and near waters of the state shall be conducted to minimize turbidity, erosion, and other water quality impacts. Construction stormwater, sediment, and erosion control Best Management Practices (BMPs) suitable to prevent exceedances of state water quality standards shall be in place before starting maintenance and shall be maintained throughout the duration of the activity.

• Justification - Disturbed areas without appropriate BMPs and construction methods can discharge excess sediment to waters of the state and degrade water quality. Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, Chapter 90.48.030 RCW, Chapter 90.48.080 RCW, Chapter 173-201A WAC, Chapter 173-201A-300-330 WAC, Chapter 173-204-120 WAC, and Chapter

173-225-010 WAC.

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2. No stockpiling or staging of materials shall occur at or below the OHWM of any waterbody.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

3. No petroleum products, fresh concrete, lime or concrete, chemicals, or other toxic or deleterious materials shall be allowed to enter waters of the state.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

4. All construction debris, excess sediment, and other solid waste material shall be properly managed and disposed of in an upland disposal site approved by the appropriate regulatory authority.

• Justification - Ecology must be assured that the Project Proponent is managing and disposing of material to protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

5. All equipment being used below the ordinary high water mark shall utilize biodegradable hydraulic fluid.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

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Equipment and Maintenance

6. Staging areas will be located a minimum of 50 feet and, where practical, 200 feet, from waters of the state, including wetlands, unless otherwise requested by the project proponent and authorized by Ecology.

• Justification - Requiring a minimum setback ensures that material will not end up in waters of the state. Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

7. Equipment used for this project shall be free of external petroleum-based products while used around the waters of the state, including wetlands. Accumulation of soils or debris shall be removed from the drive mechanisms (wheels, tires, tracks, etc.) and the undercarriage of equipment prior to its use around waters of the state, including wetlands.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 90.56 RCW, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

8. No equipment shall enter, operate, be stored or parked within any sensitive area except as specifically provided for in this WQC Order.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

9. Fuel hoses, oil drums, oil or fuel transfer valves and fittings, etc., shall be checked regularly for drips or leaks, and shall be maintained and stored properly to prevent spills into state waters.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

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• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 90.56 RCW, Chapter 173-200, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

10. Wash water containing oils, grease, or other hazardous materials resulting from washing of equipment or working areas shall not be discharged into state waters. The Project Proponent shall set up a designated area for washing down equipment.

• Justification - Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality to protect aquatic life and beneficial uses.

• Citation - Chapter 90.48 RCW, RCW 90.48.030, RCW 90.48.080, Chapter 90.56 RCW, Chapter 173-201A WAC, WAC 173-201A-300 - 330, WAC 173-204-120, and WAC 173-225-010.

11. Barges shall not be allowed to ground-out during in-water construction.

• Justification - This condition is necessary to protect shallow water habitat and prevent suspension of sediment. Ecology must protect waters of the state from all discharges and potential discharges of pollution that can affect water quality…