Attachment3_USACE Section 404 Provisional Notification.pdf

DEPARTMENT OF THE ARMY

SAN FRANCISCO DISTRICT, U.S. ARMY CORPS OF ENGINEERS

450 GOLDEN GATE AVENUE

SAN FRANCISCO, CALIFORNIA 94102

November 8, 2022

Regulatory Division

Subject: File Number SPN-2021-00214

Mr. Evan Starr U.S. Department of Transportation 55 Broadway Cambridge, Massachusetts 02142 Evan.Starr@dot.gov

Dear Mr. Starr:

This correspondence is in reference to your submittal of October 18, 2022, from WRA on your behalf, concerning Department of the Army (DA) authorization to decommission and remove existing infrastructure and restore disturbed tidal marsh within the Federal Aviation Administration (FAA) site (38.0464 ºN, -122.0335 ºW) at the Military Ocean Terminal Concord (MOTCO), near the City of Concord, Contra Costa County, California.

Work within U.S. Army Corps of Engineers (Corps) jurisdiction will include demolition and removal of all structures, concrete supports, and perimeter fencing within the FAA compound, removal of residual surface gravel from existing access roads, and minor grading/re-distribution of surface soils to restore original marsh grades and fill in holes left by the removal of structures and support pilings. Once all infrastructure and fill are removed from the site, the disturbed areas will be seeded with a native salt marsh seed mix to promote wetland re-establishment.

Work will require minor grading and other temporary impacts to approximately 0.63 acre of existing tidal marsh and salt pannes. All work shall be completed in accordance with the plans and drawings titled: “USACE File # SPN-2021-00214, FAA Concord Outer Marker (OM) Facility” dated November 1, 2022, in 3 sheets (enclosure 1).

Section 404 of the Clean Water Act (CWA) generally regulates the discharge of dredged or fill material below the plane of ordinary high water in non-tidal waters of the United States, below the high tide line in tidal waters of the United States, and within the lateral extent of wetlands adjacent to these waters. Section 10 of the Rivers and Harbors Act (RHA) generally regulates construction of structures and work, including excavation, dredging, and discharges of dredged or fill material occurring below the plane of mean high water in tidal waters of the United States; in former diked baylands currently below mean high water; outside the limits of mean high water but affecting the navigable capacity of tidal waters; or below the plane of ordinary high water in non-tidal waters designated as navigable waters of the United States.

Navigable waters of the United States generally include all waters subject to the ebb and flow of the tide; and/or all waters presently used, or have been used in the past, or may be susceptible for future use to transport interstate or foreign commerce.

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A Preliminary Jurisdictional Determination (JD) has been completed for your site.

Preliminary JDs are written indications that there may be waters of the U.S. on a parcel or indications of the approximate location(s) of waters of the U.S. on a parcel. Preliminary JDs are advisory in nature and may not be appealed. While this preliminary JD was conducted pursuant to Regulatory Guidance Letter No. 16-01, Jurisdictional Determinations (usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1256), it may be subject to future revision if new information or a change in field conditions becomes subsequently apparent. The basis for this preliminary JD is summarized in the enclosed Preliminary Jurisdictional Determination Form, which has been signed and dated by this office. You are requested to sign and date this form and return it to this office within two weeks of receipt.

Please see the enclosed Preliminary JD map titled “MOTCO FAA Site,” and dated November 1, 2022 (enclosure 2).

Based on a review of the information in your submittal, the project may be eligible for authorization under Department of the Army Nationwide Permit (NWP) 27 - Aquatic Habitat Restoration, Establishment, and Enhancement Activities (86 Fed. Reg. 73522, December 11, 2021), pursuant to Section 404 of the CWA of 1972, as amended (33 U.S.C. § 1344 et seq.). The project must be in compliance with the terms of the NWP, the general conditions of the Nationwide Permit Program, and the San Francisco District regional conditions cited on our website (www.spn.usace.army.mil/Missions/Regulatory/Prmitting/Nationwide/). You must also be in compliance with any special conditions specified in this letter for the NWP authorization to remain valid. Non-compliance with any term or condition could result in the revocation of the NWP authorization for your project, thereby requiring you to obtain an Individual Permit from the Corps. This NWP authorization does not obviate the need to obtain other State or local approvals required by law.

This letter is not a permit; it is a provisional notification. You are not authorized to undertake the activities that require a Department of the Army permit or verification at this point in the review process. No final Department of the Army permit or verification can be issued until you have obtained a Section 401 water quality certification from the San Francisco Bay Regional Water Quality Control Board (RWQCB) and the neighboring jurisdiction review process provided for in 40 C.F.R. 121 has been completed. If the RWQCB fails to act on a valid request for certification by within a reasonable period of time determined by the Corps, the Corps will presume a waiver of water quality certification has been obtained. You shall submit a copy of the certification to the Corps prior to the commencement of work.

General Condition 18 stipulates that project authorization under a NWP does not allow for the incidental take of any federally-listed species in the absence of a biological opinion (BO) with incidental take provisions. As the principal federal lead agency for this project, the FAA initiated consultation with the United States Fish and Wildlife Service (USFWS) to address project related impacts to listed species, pursuant to Section 7(a) of the Endangered Species Act of 1973, as amended,16 U.S.C. § 1531 et seq. By letter of September 16, 2022 (enclosure 3), https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1256 http://www.spn.usace.army.mil/Missions/Regulatory/Prmitting/Nationwide/

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USFWS issued a BO (2022-0014966-S7-001) with an incidental take statement for the salt marsh harvest mouse (Reithrodontomys raviventris). USFWS also concurred that the project is not likely to adversely affect the California clapper rail (Rallus longirostris obsoletus) or soft bird’s-beak (Cordylanthus mollis ssp. mollis).

General Condition 20 stipulates that any project potentially affecting a historic property may not be authorized until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. As the Federal lead agency for this project, the FAA initiated consultation with the State Historic Preservation Officer (SHPO) to address potential project related impacts to historic properties listed or eligible for listing in the National Register of Historic Places. The SHPO did not object to the FAA’s determination of no historic properties affected within 30 days, and therefore the section 106 requirements are fulfilled in accordance with 36 CFR 800.4(d)(1)(i).

In order to ensure compliance with this NWP authorization, the following special condition shall be implemented:

1. To remain exempt from the prohibitions of Section 9 of the Endangered Species Act, the non-discretionary Terms and Conditions for incidental take of federally-listed Species shall be fully implemented as stipulated in the Biological Opinion titled “Formal Consultation for the Federal Aviation Administration Removal of Auxiliary Building, Antenna, and Fencing in Military Ocean Terminal Concord, Contra Costa County, CA” dated September 16, 2022, from USFWS (enclosure 3).

Project authorization under the NWP is conditional upon compliance with the mandatory terms and conditions associated with incidental take. Failure to comply with the terms and conditions for incidental take, where a take of a federally-listed species occurs, would constitute an unauthorized take and non-compliance with the NWP authorization for your project. The USFWS is, however, the authoritative federal agency for determining compliance with the incidental take statement and for initiating appropriate enforcement actions or penalties under the Endangered Species Act.

You may refer any questions on this matter to me by telephone at (415) 503-6791 or by e-mail at Gregory.G.Brown@usace.army.mil. All correspondence should be addressed to the Regulatory Division, South Branch, referencing the file number at the head of this letter.

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The San Francisco District is committed to improving service to our customers. The Regulatory staff seeks to achieve the goals of the Regulatory Program in an efficient and cooperative manner while preserving and protecting our nation’s aquatic resources. If you would like to provide comments on our Regulatory Program, please complete the Customer Service Survey Form available on our website: www.spn.usace.army.mil/Missions/Regulatory.aspx

Sincerely, Greg Brown Senior Project Manager, Regulatory Division

Enclosures cc:

WRA, San Rafael CA (hope.kingma@wra-ca.com) CA RWQCB, Oakland, CA (Kathryn.Hart@waterboards.ca.gov) US FWS, Sacramento, CA (Brian_Hansen@fws.gov) http://www.spn.usace.army.mil/Missions/Regulatory.aspx