Exhibit 7-3 to Sample Contract_Army Corps Permit.pdf

50'-0"

811.22 sf

Endangered Species Act -Section 7 Programmatic Consultation

Conference and Biological Opinion and

Magnuson-Stevens Fishery Conservation and

Management Act Essential Fish Habitat

Consultation For

Revised Standard Local Operating Procedures for Endangered Species to Administer Maintenance or Improvement of Stormwater, Transportation, and Utility Actions

Authorized or Carried Out by the U.S. Army Corps of Engineers in Oregon (SLOPES for Stormwater, Transportation or Utilities)

NMFS Consultation No. NWR-2013-10411

Action Agency: U.S. Army Corps of Engineers Portland District, Operations and Regulatory Branches

Affected Species and Determinations:

ESA-Listed Species

ESA

Statu s

Is the action likely to adversely affect this species or its critical habitat?

Is the action likely to jeopardiz e this species?

Is the action likely to destroy or adversely modify critical habitat for this species?

Lower Columbia River Chinook salmon T Yes No No

Upper Willamette River Chinook salmon T Yes No No

Upper Columbia River spring-run Chinook salmon E Yes No No

Snake River spring/summer run Chinook salmon T Yes No No

Snake River fall-run Chinook salmon T Yes No No

Columbia River chum salmon T Yes No No

Lower Columbia River Coho salmon T Yes No No*

Oregon Coast Coho salmon T Yes No No

Southern Oregon/Northern California coasts Coho T Yes No No

Snake River sockeye salmon E Yes No No

Lower Columbia River steelhead T Yes No No

Upper Willamette River steelhead T Yes No No

Middle Columbia River steelhead T Yes No No

Upper Columbia River steelhead T Yes No No

Snake River Basin steelhead T Yes No No

Southern green sturgeon T Yes No No

Eulachon T Yes No No

Southern resident killer whale T No No N/A

*Critical habitat has been proposed for LCR Coho salmon.

Fishery Management Plan that Describes

Would the action adversely affect

Are EFH conservation recommendations

Coastal Pelagic Species Yes Yes

Pacific Coast Groundfish Yes Yes

Pacific Coast Salmon Yes Yes

Consultation Conducted By: National Marine Fisheries Service

West Coast Region

Issued by:

Date Issued: March 14, 2014

Excerpt from SLOPES for Stormwater, Transportation, or Utilities General Construction March 14, 2014

Natural hazard response to complete an unplanned, immediate, or short-term repair of a stormwater facility, road, culvert, bridge, or utility line without federal assistance.

These include in-water repairs that must be made before the next in-water work period to resolve critical conditions that, unless corrected, are likely to cause loss of human life, unacceptable loss of property, or natural resources. Natural hazards may include, but are not limited to, a flood that causes scour erosion and significantly weakens the foundation of a road or bridge; culvert failure due to blockage by fluvial debris, overtopping, or crushing; and ground saturation that causes a debris slide, earth flow, or rock fall to cover a road. This category of actions is only included to the extent that they require Corps permits or are undertaken by the Corps, but otherwise do not require federal authorization, funding, or federal agency involvement.. The response will include an assessment of its effects to listed species and critical habitats and a plan to bring the response into conformance with all other applicable PDC in this opinion, including compensatory mitigation based on the baseline conditions prior to the natural hazard.

Streambank and channel stabilization to ensure that roads, culverts, bridges and utility lines do not become hazardous due to the long-term effects of toe erosion, scour, subsurface entrainment, or mass failure. This action includes installation and maintenance of scour protection, such as at a footing, facing, or headwall, to prevent scouring or down-cutting of an existing culvert, road foundation, or bridge support. It does not include scour protection for bridge approach fills. Proposed streambank stabilization methods include alluvium placement, vegetated riprap with large wood (LW), log or roughened rock toe, woody plantings, herbaceous cover, deformable soil reinforcement, coir logs, bank reshaping and slope grading, floodplain flow spreaders, floodplain roughness, and engineered log jams (ELJs), alone or in combination. Any action that requires additional excavation or structural changes to a road, culvert, or bridge foundation is covered under road, culvert and bridge maintenance, rehabilitation, and replacement.

Road surface, culvert and bridge maintenance, rehabilitation and replacement. Maintenance, rehabilitation, and replacement to ensure that roads, culverts and bridges remain safe and reliable for their intended use without impairing fish passage, to extend their service life, and to withdraw temporary access roads from service in a way that promotes watershed restoration when their usefulness has ended. This includes actions necessary to complete geotechnical surveys, such as access road construction, drill pad preparation, mobilization and set up, drilling and sampling operations, demobilization, boring abandonment, and access road and drill pad reclamation. It also includes, excavation, grading, and filling necessary to maintain, rehabilitate, or replace existing roads, culverts, and bridges. This type of action does not include significant channel realignment, installation of fish passage (e.g., fish ladders, juvenile fish bypasses, culvert baffles, roughened chutes, step weirs), tidegate maintenance or replacements other than full removal, construction of new permanent roads within the riparian zone that are not a bridge approach, or construction of a new bridge where a culvert or other road stream crossing did not previously exist, or any project which will result in or contribute to other land use changes that trigger effects, including indirect effects not considered in this opinion.

Stormwater facilities and utility line stream crossings to install, maintain, rehabilitate, or replace stormwater facilities, or pipes or pipelines used to transport gas or liquids, including new or upgraded stormwater outfalls, and cables, or lines or wires used to transmit electricity or communication. Construction, maintenance or improvement of stormwater facilities include surveys, access road construction, excavation, grading, and filling necessary to maintain, rehabilitate, or replace existing stormwater treatment or flow control best management practices (BMPs). Utility line actions involve excavation, temporary side casting of excavated material, backfilling of the trench, and restoration of the work site to preconstruction contours and vegetation. This type of action does not include construction or enlargement of gas, sewer, or water lines to support a new or expanded service area for which effects, including indirect effects from interrelated or interdependent activities, have not been analyzed in this opinion. This opinion also does not include construction of any line that transits the bed of an estuary or saltwater area at depths less than -10.0 feet (mean lower low water).

1.3.1.2 Project Design Criteria - General Construction Measures

13. Project Design

a. Use the best available scientific information regarding the likely impacts of climate change on resources in the project area to design the project so that it will be resilient to those impacts, including projections of local stream flow, water temperature, and extreme events.

b. Assess whether the project area is contaminated by chemical substances that may cause harm if released by the project. The assessment will be commensurate with site history and may include the following:

i. Review available records, e.g., the history of existing structures and contamination events.

ii. If the project area was used for industrial processes, inspect to determine the environmental condition of the property.

iii. Interview people who are knowledgeable about the site, e.g., site owners, operators, and occupants, neighbors, or local government officials.

iv. If contamination is found or suspected, consult with a suitably qualified and experienced contamination professional and NMFS before carrying out ground disturbing activities.

c. Obtain all applicable regulatory permits and authorizations before starting construction.

d. Minimize the extent and duration of earthwork, e.g., compacting, dredging, drilling, excavation, and filling.

14. In-Water Work Timing

a. Unless the in-water work is part of a natural hazard response, complete all work within the wetted channel during dates listed in the most recent version of Oregon In-water Work Guidelines (ODFW 2008), except that that in-water work in the Willamette River below Willamette Falls is not approved between December 1 and January 31.

b. Hydraulic and topographic measurements and placement of LW or gravel may be completed anytime, provided the affected area is not occupied by adult fish congregating for spawning, or redds containing eggs or pre-emergent alevins.

15. Pile Installation. Pile may be concrete, or steel round pile 24 inches in diameter or smaller, steel H-pile designated as HP24 or smaller, or wood that has not been treated with preservatives or pesticides. Any proposal to use treated wood pilings is not covered by this consultation and will require individual consultation.

a. NMFS will review and approve pile installation plans.

b. When practical, use a vibratory hammer for in-water pile installation. In the lower Columbia River only a vibratory hammer may be used in October.

c. Jetting may be used to install pile in areas with coarse, uncontaminated sediments that meet criteria for unconfined in-water disposal (USACE Northwest Division 2009).

d. When using an impact hammer to drive or proof a steel pile, one of the following sound attenuation methods will be used:

i. Completely isolate the pile from flowing water by dewatering the area around the pile.

ii. If water velocity is 1.6 feet per second or less, surround the pile being driven by a confined or unconfined bubble curtain that will distribute small air bubbles around 100% of the pile perimeter for the full depth of the water column. See, e.g., NMFS and USFWS (2006), Wursig et al. (2000), and Longmuir and Lively (2001).

iii. If water velocity is greater than 1.6 feet per second, surround the pile being driven with a confined bubble curtain (e.g., surrounded by a fabric or non-metallic sleeve) that will distribute air bubbles around 100% of the pile perimeter for the full depth of the water column.

iv. Provide NMFS information regarding the timing of in-water work, the number of impact hammer strikes per pile and the estimated time required to drive piles, hours per day pile driving will occur, depth of water, and type of substrate, hydroacoustic assumptions, and the pile type, diameter, and spacing of the piles.

16. Pile Removal. The following steps will be used to minimize creosote release, sediment disturbance and total suspended solids:

a. Install a floating surface boom to capture floating surface debris.

b. Keep all equipment (e.g., bucket, steel cable, vibratory hammer) out of the water, grip piles above the waterline, and complete all work during low water and low current conditions.

c. Dislodge the pile with a vibratory hammer, when possible; never intentionally break a pile by twisting or bending.

d. Slowly lift the pile from the sediment and through the water column.

e. Place the pile in a containment basin on a barge deck, pier, or shoreline without attempting to clean or remove any adhering sediment. A containment basin for the removed piles and any adhering sediment may be constructed of durable plastic sheeting with sidewalls supported by hay bales or another support structure to contain all sediment and return flow which may otherwise be directed back to the waterway.

f. Fill the hole left by each pile with clean, native sediments immediately after removal.

g. Dispose of all removed piles, floating surface debris, any sediment spilled on work surfaces, and all containment supplies at a permitted upland disposal site.

17. Broken or Intractable Pile. If a pile breaks above the surface of uncontaminated sediment, or less than 2 feet below the surface, make every attempt short of excavation to remove it entirely. If the pile cannot be removed without excavation, drive the pile deeper if possible.

a. If a pile in contaminated sediment is intractable or breaks above the surface, cut the pile or stump off at the sediment line.

b. If a pile breaks within contaminated sediment, make no further effort to remove it and cover the hole with a cap of clean substrate appropriate for the site.

c. If dredging is likely where broken piles are buried, use a global positioning system (GPS) device to note the location of all broken piles for future use in site debris characterization.

18. Fish Capture and Release

a. If practicable, allow listed fish species to migrate out of the work area or remove fish before dewatering; otherwise remove fish from an exclusion area as it is slowly dewatered with methods such as hand or dip-nets, seining, or trapping with minnow traps (or gee-minnow traps).

b. Fish capture will be supervised by a qualified fisheries biologist, with experience in work area isolation and competent to ensure the safe handling of all fish.

c. Conduct fish capture activities during periods of the day with the coolest air and water temperatures possible, normally early in the morning to minimize stress and injury of species present.

d. Monitor the nets frequently enough to ensure they stay secured to the banks and free of organic accumulation.

e. Electrofishing will be used during the coolest time of day, only after other means of fish capture are determined to be not feasible or ineffective.

i. Do not electrofish when the water appears turbid, e.g., when objects are not visible at depth of 12 inches.

ii. Do not intentionally contact fish with the anode.

iii. Follow NMFS (2000) electrofishing guidelines, including use of only direct current (DC) or pulsed direct current within the following ranges:11

11 National Marine Fisheries Service. 2000. Guidelines for electrofishing waters containing Salmonid listed under the Endangered Species Act. Portland, Oregon and Santa Rose, California http://swr.nmfs.noaa.gov/sr/Electrofishing_Guidelines.pdf

1. If conductivity is less than 100 µs, use 900 to 1100 volts.

2. If conductivity is between 100 and 300 µs, use 500 to 800 volts.

3. If conductivity greater than 300 µs, use less than 400 volts.

iv. Begin electrofishing with a minimum pulse width and recommended voltage, then gradually increase to the point where fish are immobilized.

v. Immediately discontinue electrofishing if fish are killed or injured, i.e., dark bands visible on the body, spinal deformations, significant de-scaling, torpid or inability to maintain upright attitude after sufficient recovery time.

Recheck machine settings, water temperature and conductivity, and adjust or postpone procedures as necessary to reduce injuries.

f. If buckets are used to transport fish:

i. Minimize the time fish are in a transport bucket.

ii. Keep buckets in shaded areas or, if no shade is available, covered by a canopy.

iii. Limit the number of fish within a bucket; fish will be of relatively comparable size to minimize predation.

iv. Use aerators or replace the water in the buckets at least every 15 minutes with cold clear water.

v. Release fish in an area upstream with adequate cover and flow refuge; downstream is acceptable provided the release site is below the influence of construction.

vi. Be careful to avoid mortality counting errors.

g. Monitor and record fish presence, handling, and injury during all phases of fish capture and submit a fish salvage report (Appendix A, Part 1 with Part 3 completed) to the Corps and the SLOPES mailbox (slopes.nwr@noaa.gov) within 60 days.

19. Fish Passage

a. Provide fish passage for any adult or juvenile ESA-listed fish likely to be present in the action area during construction, unless passage did not exist before construction or the stream is naturally impassable at the time of construction.

b. After construction, provide fish passage for any adult or juvenile ESA-listed fish that meets NMFS’s fish passage criteria (NMFS 2011a) for the life of the action.

20. Fish Screens

a. Submit to NMFS for review and approval fish screen designs for surface water diverted by gravity or by pumping at a rate that exceeds 3 cubic feet per second (cfs).

b. All other diversions will have a fish screen that meets the following specifications:

i. An automated cleaning device with a minimum effective surface area of 2.5 square feet per cubic foot per second, and a nominal maximum approach velocity of 0.4 feet per second, or no automated cleaning device, a minimum effective surface area of 1 square foot per cubic foot per second, and a nominal maximum approach rate of 0.2 foot per second; and

ii. A round or square screen mesh that is no larger than 2.38 millimeters (mm) (0.094”) in the narrow dimension, or any other shape that is no larger than 1.75 mm (0.069”) in the narrow dimension.

c. Each fish screen will be installed, operated, and maintained according to

NMFS’s fish screen criteria.

21. Surface Water Withdrawal

a. Surface water may be diverted to meet construction needs, including dust abatement, only if water from developed sources (e.g., municipal supplies, small ponds, reservoirs, or tank trucks) are unavailable or inadequate; and

b. Diversions may not exceed 10% of the available flow and will have a juvenile fish exclusion device that is consistent with NMFS’s criteria (NMFS 2011a).12

12 National Marine Fisheries Service 2011. Anadromous Salmonid passage facility design. Northwest Region.

http://www.nwr.noaa.gov/publications/hydropower/ferc/fish-passage-design.pdf

22. Construction Discharge Water. Treat all discharge water using best management practices to remove debris, sediment, petroleum products, and any other pollutants likely to be present (e.g., green concrete, contaminated water, silt, welding slag, sandblasting abrasive, grout cured less than 24 hours, drilling fluids), to avoid or minimize pollutants discharged to any perennial or intermittent water body. Pump seepage water from the de-watered work area to a temporary storage and treatment site or into upland areas and allow water to filter through vegetation prior to reentering the stream channel. Treat water used to cure concrete until pH stabilizes to background levels.

23. Temporary Access Roads and Paths

a. Whenever reasonable, use existing access roads and paths preferentially.

b. Minimize the number and length of temporary access roads and paths through riparian areas and floodplains.

c. Minimize removal of riparian vegetation.

d. When it is necessary to remove vegetation, cut at ground level (no grubbing).

e. Do not build temporary access roads or paths where grade, soil, or other features suggest slope instability.

f. Any road on a slope steeper than 30% will be designed by a civil engineer with experience in steep road design.

g. After construction is complete, obliterate all temporary access roads and paths, stabilize the soil, and revegetate the area.

h. Temporary roads and paths in wet areas or areas prone to flooding will be obliterated by the end of the in-water work window. Decompact road surfaces and drainage areas, pull fill material onto the running surface, and reshape to match the original contours.

24. Temporary Stream Crossings

a. No stream crossing may occur at active spawning sites, when holding adult listed fish are present, or when eggs or alevins are in the gravel.

b. Do not place temporary crossings in areas that may increase the risk of channel re-routing or avulsion, or in potential spawning habitat, e.g., pools and pool tailouts.

c. Minimize the number of temporary stream crossings; use existing stream crossings whenever reasonable.

d. Install temporary bridges and culverts to allow for equipment and vehicle crossing over perennial streams during construction.

e. Wherever possible, vehicles and machinery will cross streams at right angles to the main channel.

f. Equipment and vehicles may cross the stream in the wet only where the streambed is bedrock, or where mats or off-site logs are placed in the stream and used as a crossing.

g. Obliterate all temporary stream crossings as soon as they are no longer needed, and restore any damage to affected stream banks or channel.

25. Equipment, Vehicles and Power Tools

a. Select, operate and maintain all heavy equipment, vehicles, and power tools to minimize adverse effects on the environment, e.g., low pressure tires, minimal hard-turn paths for track vehicles, use of temporary mats or plates to protect wet soils.

b. Before entering wetlands or working within 150 feet of a water body:

i. Power wash all heavy equipment, vehicles and power tools, allow them to fully dry, and inspect them for fluid leaks, and to make certain no plants, soil, or other organic material are adhering to the surface.

ii. Replace petroleum-based hydraulic fluids with biodegradable products13 in hydraulic equipment, vehicles, and power tools.

c. Repeat cleaning as often as necessary during operation to keep all equipment, vehicles, and power tools free of external fluids and grease, and to prevent a leak or spill from entering the water.

d. Avoid use of heavy equipment, vehicles or power tools below ordinary high water (OHW) unless project specialists determine such work is necessary, or would result in less risk of sedimentation or other ecological damage than work above that elevation.

e. Before entering the water, inspect any watercraft, waders, boots, or other gear to be used in or near water and remove any plants, soil, or other organic material adhering to the surface.

f. Ensure that any generator, crane or other stationary heavy equipment that is operated, maintained, or stored within 150 feet of any water body is also protected as necessary to prevent any leak or spill from entering the water.

26. Site Layout and Flagging

a. Before any significant ground disturbance or entry of mechanized equipment or vehicles into the construction area, clearly mark with flagging or survey marking paint the following areas:

i. Sensitive areas, e.g., wetlands, water bodies, OHW, spawning areas.

ii. Equipment entry and exit points.

iii. Road and stream crossing alignments.

iv. Staging, storage, and stockpile areas.

b. Before the use of herbicides, clearly flag no-application buffer zones.

27. Staging, Storage, and Stockpile Areas

a. Designate and use staging areas to store hazardous materials, or to store, fuel, or service heavy equipment, vehicles and other power equipment with tanks larger than 5 gallons, that are at least 150 feet from any natural water body or wetland, or on an established paved area, such that sediment and other contaminants from the staging area cannot be deposited in the floodplain or stream.

b. Natural materials that are displaced by construction and reserved for restoration, e.g., LW, gravel, and boulders, may be stockpiled within the 100-year floodplain.

c. Dispose of any material not used in restoration and not native to the floodplain outside of the functional floodplain.

13 For additional information and suppliers of biodegradable hydraulic fluids, motor oil, lubricant, or grease, see, Environmentally Acceptable Lubricants by the U.S. EPA (2011a); e.g., mineral oil, polyglycol, vegetable oil, synthetic ester; Mobil® biodegradable hydraulic oils, Total® hydraulic fluid, Terresolve Technologies Ltd.® bio-based biodegradable lubricants, Cougar Lubrication® 2XT Bio engine oil, Series 4300 Synthetic Bio-degradable Hydraulic Oil, 8060-2 Synthetic Bio-Degradable Grease No. 2, etc. The use of trade, firm, or corporation names in this opinion is for the information and convenience of the action agency and applicants and does not constitute an official endorsement or approval by the U.S. Department of Commerce or NMFS of any product or service to the exclusion of others that may be suitable.

d. After construction is complete, obliterate all staging, storage, or stockpile areas, stabilize the soil, and revegetate the area.14

28. Drilling and Boring

a. If drilling or boring are used, isolate drilling operations in wetted stream channels using a steel casing or other appropriate isolation method to prevent drilling fluids from contacting water.

b. If drilling through a bridge deck is necessary, use containment measures to prevent drilling debris from entering the channel.

c. Sampling and directional drill recovery/recycling pits, and any associated waste or spoils will be completely isolated from surface waters, off-channel habitats and wetlands.

d. All waste or spoils will be covered if precipitation is falling or imminent.

e. All drilling fluids and waste will be recovered and recycled or disposed to prevent entry into flowing water.

f. If a drill boring case breaks and drilling fluid or waste is visible in water or a wetland, make all possible efforts to contain the waste and contact NMFS within 48 hours.

g. Waste containment

i. All drilling equipment, drill recovery and recycling pits, and any waste or spoil produced, will be contained and then completely recovered and recycled or disposed of as necessary to prevent entry into any waterway. Use a tank to recycle drilling fluids.

ii. When drilling is completed, remove as much of the remaining drilling fluid as possible from the casing (e.g., by pumping) to reduce turbidity when the casing is removed.

29. Pesticide and Preservative-Treated Wood15

a. Treated wood may not be used in a structure that will be in or over water or permanently or seasonally flooded wetlands, except to maintain or repair an existing wood bridge. The following criteria in b, c, and d below apply to the use of treated wood for maintenance or repair of existing wood bridges.

b. No part of the treated wood may be exposed to leaching by precipitation, overtopping waves, or submersion (e.g., no treated wood piles (per PDC#10, and stringers or decking of a timber bridge can be made from treated wood only if they will be covered by a non-treated wood wearing surface that covers the entire roadway width), and all elements of the structure using the treated wood are designed to avoid or minimize impacts or abrasion that could create treated wood debris or dust.

c. Installation of treated wood

i. Treated wood shipped to the project area will be stored out of contact with standing water and wet soil, and protected from precipitation.

ii. Each load and piece of treated wood will be visually inspected and rejected for use in or above aquatic environments if visible residue, bleeding of preservative, preservative-saturated sawdust, contaminated soil, or other matter is present.

14 Road and path obliteration refers to the most comprehensive degree of decommissioning and involves decompacting the surface and ditch, pulling the fill material onto the running surface, and reshaping to match the original contour.

15 Treated woods may contain chromated copper arsenate (CCA), ammoniacal copper zinc arsenate (ACZA), alkaline copper quat (ACQ-B and ACQ-D), ammoniacal copper citrate (CC), copper azole (CBA-A), copper dimethyldithiocarbamate (CDDC), borate preservatives, and oil-type wood preservatives, such as creosote, pentachlorophenol, and copper naphthenate.

iii. Prefabrication will be used whenever possible to minimize cutting, drilling and field preservative treatment.

iv. When field fabrication is necessary, all cutting, drilling, and field preservative treatment of exposed treated wood will be done above OHW to minimize discharge of sawdust, drill shavings, excess preservative and other debris.

v. Tarps, plastic tubs or similar devices will be used to contain the bulk of any fabrication debris, and any excess field preservative will be removed from the treated wood by wiping and proper disposal.

d. Removal of treated wood

i. Evaluate all wood construction debris removed during a project, including pile, to ensure proper disposal of treated wood.

ii. Ensure that no treated wood debris falls into the water or, if debris does fall into the water, remove it immediately.

iii. After removal, place treated wood debris in an appropriate dry storage site until it can be removed from the project area.

iv. Do not leave any treated wood debris in the water or stacked on the streambank at or below OHW.

30. Erosion Control

a. Use site planning and site erosion control measures commensurate with the scope of the project to prevent erosion and sediment discharge from the project site.

b. Before significant earthwork begins, install appropriate, temporary erosion controls downslope to prevent sediment deposition in the riparian area, wetlands, or water body.

c. During construction,

i. Complete earthwork in wetlands, riparian areas, and stream channels as quickly as possible.

ii. Cease project operations when high flows may inundate the project area, except for efforts to avoid or minimize resource damage.

iii. If eroded sediment appears likely to be deposited in the stream during construction, install additional sediment barriers as necessary.

iv. Temporary erosion control measures may include fiber wattles, silt fences, jute matting, wood fiber mulch and soil binder, or geotextiles and geosynthetic fabric.

v. Soil stabilization using wood fiber mulch and tackifier (hydro-applied) may be used to reduce erosion of bare soil, if the materials are free of noxious weeds and nontoxic to aquatic and terrestrial animals, soil microorganisms, and vegetation.

vi. Remove sediment from erosion controls if it reaches 1/3 of the exposed height of the control.

vii. Whenever surface water is present, maintain a supply of sediment control materials and an oil-absorbing floating boom at the project site.

viii. Stabilize all disturbed soils following any break in work unless construction will resume within four days.

d. Remove temporary erosion controls after construction is complete and the site is fully stabilized.

31. Hazardous Material Safety

a. At the project site:

i. Post written procedures for notifying environmental response agencies, including an inventory and description of all hazardous materials present, and the storage and handling procedures for their use.

ii. Maintain a spill containment kit, with supplies and instructions for cleanup and disposal, adequate for the types and quantity of hazardous materials present.

iii. Train workers in spill containment procedures, including the location and use of the spill containment kits.

iv. Temporarily contain any waste liquids generated under an impervious cover, such as a tarpaulin, in the staging area until the wastes can be properly transported to, and disposed of, at an approved receiving facility.

32. Barge Use. Any barge used as a work platform to support construction will be:

a. Large enough to remain stable under foreseeable loads and adverse conditions.

b. Inspected before arrival to ensure vessel and ballast are free of invasive species.

c. Secured, stabilized and maintained as necessary to ensure no loss of balance, stability, anchorage, or other condition that can result in the release of contaminants or construction debris.

33. Dust Abatement

a. Use dust abatement measures commensurate with soil type, equipment use, wind conditions, and the effects of other erosion control measures.

b. Sequence and schedule work to reduce the exposure of bare soil to wind erosion.

c. Maintain spill containment supplies on-site whenever dust abatement chemicals are applied.

d. Do not use petroleum-based products.

e. Do not apply dust-abatement chemicals, e.g., magnesium chloride, calcium chloride salts, lignin sulfonate, within 25 feet of a water body, or in other areas where they may runoff into a wetland or water body.

f. Do not apply lignin sulfonate at rates exceeding 0.5 gallons per square yard of road surface, assuming a 50:50 solution of lignin sulfonate to water.

34. Work Area Isolation

a. Isolate any work area within the wetted channel from the active stream whenever ESA-listed fish are reasonably certain to be present, or if the work area is less than 300 feet upstream from known spawning habitats.

b. Engineering design plans for work area isolation will include all isolation elements and fish release areas.

c. Dewater the shortest linear extent of work area practicable, unless wetted in-stream work is deemed to be minimally harmful to fish, and is beneficial to other aquatic species.16

16 For instructions on how to dewater areas occupied by lamprey, see Best management practices to minimize adverse effects to Pacific lamprey (Entosphenus tridentatus) (USFWS 2010).

i. Use a coffer dam and a by-pass culvert or pipe, or a lined, non-erodible diversion ditch to divert flow around the dewatered area. Dissipate flow energy to prevent damage to riparian vegetation or stream channel and provide for safe downstream reentry of fish, preferably into pool habitat with cover.

ii. Where gravity feed is not possible, pump water from the work site to avoid rewatering. Maintain a fish screen on the pump intake to avoid juvenile fish entrainment.

iii. Pump seepage water to a temporary storage and treatment site, or into upland areas, to allow water to percolate through soil or to filter through vegetation before reentering the stream channel with a treatment system comprised of either a hay bale basin or other sediment control device.

iv. Monitor below the construction site to prevent stranding of aquatic organisms.

v. When construction is complete, re-water the construction site slowly to prevent loss of surface flow downstream, and to prevent a sudden increase in stream turbidity.

d. Whenever a pump is used to dewater the isolation area and ESA-listed fish may be present, a fish screen will be used that meets the most current version of NMFS’s fish screen criteria (NMFS 2011a). NMFS approval is required for pumping at a rate that exceeds 3 cfs.

35. Invasive and Non-Native Plant Control

a. Non-herbicide methods. Limit vegetation removal and soil disturbance within the riparian zone by limiting the number of workers there to the minimum necessary to complete manual, mechanical, or hydro-mechanical plant control (e.g., hand pulling, bending17, clipping, stabbing, digging, brush-cutting, mulching, radiant heat, portable flame burner, super-heated steam, pressurized hot water, or hot foam (Arsenault et al. 2008; Donohoe et al. 2010))18. Do not allow cut, mowed, or pulled vegetation to enter waterways.

b. Herbicide Label. Herbicide applicators will comply with all label instructions

c. Power equipment. Refuel gas-powered equipment with tanks larger than 5 gallons in a vehicle staging area placed 150 feet or more from any natural water body, or in an isolated hazard zone such as a paved parking lot.

d. Maximum herbicide treatment area. Do not exceed treating 1.0% of the acres of riparian habitat within a 6th-field HUC with herbicides per year.

e. Herbicide applicator qualifications. Herbicides may only be applied by an appropriately licensed applicator using an herbicide specifically targeted for a particular plant species that will cause the least impact. The applicator will be responsible for preparing and carrying out the herbicide transportation and safely plan, as follows.

f. Herbicide transportation and safety plan. The applicator will prepare and carry out an herbicide safety/spill response plan to reduce the likelihood of spills or misapplication, to take remedial actions in the event of spills, and to fully report the event.

17 Knotweed treatment pre-treatment; See Nickelson (2013).

18 See http://ahmct.ucdavis.edu/limtask/equipmentdetails.html

g. Herbicides. The only herbicides proposed for use under this opinion are (some common trade names are shown in parentheses):19

i. aquatic imazapyr (e.g., Habitat)

ii. aquatic glyphosate (e.g., AquaMaster, AquaPro, Rodeo)

iii. aquatic triclopyr-TEA (e.g., Renovate 3)

iv. chlorsulfuron (e.g., Telar, Glean, Corsair)

v. clopyralid (e.g., Transline)

vi. imazapic (e.g., Plateau)

vii. imazapyr (e.g., Arsenal, Chopper)

viii. metsulfuron-methyl (e.g., Escort)

ix. picloram (e.g., Tordon)

x. sethoxydim (e.g., Poast, Vantage)

xi. sulfometuron-methyl (e.g., Oust, Oust XP)

h. Herbicide adjuvants. When recommended by the label, an approved aquatic surfactant or drift retardant can be used to improve herbicidal activity or application characteristics. Adjuvants that contain alky amine etholoxylates, i.e., polyethoxylated tallow amine (POEA), alkylphenol ethoxylates (including alkyl phenol ethoxylate phosphate esters), or herbicides that contain these compounds are not covered by this opinion. The following product names are covered by this opinion:

i. Agri-Dex ii. AquaSurf

iii. Bond iv. Bronc Max

v. Bronc Plus Dry-EDT vi. Class Act NG

vii. Competitor viii. Cut Rate

ix. Cygnet Plus x. Destiny HC

xi. Exciter xii. Fraction

xiii. InterLock xiv. Kinetic

xv. Level 7 xvi. Liberate

xvii. Magnify xviii. One-AP XL

xix. Pro AMS Plus xx. Spray-Rite

xxi. Superb HC xxii. Tactic

xxiii. Tronic

i. Herbicide carriers. Herbicide carriers (solvents) are limited to water or specifically labeled vegetable oil. Use of diesel oil as an herbicide carrier is not covered by this opinion.

j. Dyes. Use a non-hazardous indicator dye (e.g., Hi-Light or Dynamark™) with herbicides within 100 feet of water. The presence of dye makes it easier to see where the herbicide has been applied and where or whether it has dripped, spilled, or leaked. Dye also makes it easier to detect missed spots, avoid spraying a plant or area more than once, and minimize over-spraying (SERA 1997).

k. Herbicide mixing. Mix herbicides and adjuvants, carriers, and/or dyes more than 150 feet from any perennial or intermittent water body to minimize the risk of an accidental discharge.

19 The use of trade, firm, or corporation names in this opinion is for the information and convenience of the action agency and applicants and does not constitute an official endorsement or approval by the U.S. Department of Commerce or NMFS of any product or service to the exclusion of others that may be suitable.

i. Tank Mixtures. The potential interactive relationships that exist among most active ingredient combinations have not been defined and are uncertain.

Therefore, combinations of herbicides in a tank mix are not covered by this opinion.

m. Spill Cleanup Kit. Provide a spill cleanup kit whenever herbicides are used, transported, or stored. At a minimum, cleanup kits will include material safety data sheets, the herbicide label, emergency phone numbers, and absorbent material such as cat litter to contain spills.

n. Herbicide application rates. Apply herbicides at the lowest effective label rates.

o. Herbicide application methods. Apply liquid or granular forms of herbicides as follows:

i. Broadcast spraying – hand held nozzles attached to back pack tanks or vehicles, or by using vehicle mounted booms.

ii. Spot spraying – hand held nozzles attached to back pack tanks or vehicles, hand-pumped spray, or squirt bottles to spray herbicide directly onto small patches or individual plants.

iii. Hand/selective – wicking and wiping, basal bark, fill (“hack and squirt”), stem injection, cut-stump.

iv. Triclopyr – will not be applied by broadcast spraying.

v. Keep the spray nozzle within four feet of the ground when applying herbicide. If spot or patch spraying tall vegetation more than 15 feet away from the high water mark (HWM), keep the spray nozzle within 6 feet of the ground.

vi. Apply spray in swaths parallel towards the project area, away from the creek and desirable vegetation, i.e., the person applying the spray will generally have their back to the creek or other sensitive resource.

vii. Avoid unnecessary run off during cut surface, basal bark, and hack-squirt/injection applications.

p. Washing spray tanks. Wash spray tanks 300 feet or more away from any surface water.

q. Minimization of herbicide drift and leaching. Minimize herbicide drift and leaching as follows:

i. Do not spray when wind speeds exceed 10 miles per hour, or are less than 2 miles per hour.

ii. Be aware of wind directions and potential for herbicides to affect aquatic habitat area downwind.

iii. Keep boom or spray as low as possible to reduce wind effects.

iv. Increase spray droplet size whenever possible by decreasing spray pressure, using high flow rate nozzles, using water diluents instead of oil, and adding thickening agents.

v. Do not apply herbicides during temperature inversions, or when air temperature exceeds 80 degrees Fahrenheit.

vi. Wind and other weather data will be monitored and reported for all broadcast applications.

r. Rain. Do not apply herbicides when the soil is saturated or when a precipitation event likely to produce direct runoff to salmon bearing waters from the treated area is forecasted by the NOAA National Weather Service or other similar forecasting service within 48 hours following application. Soil-activated herbicides may follow label instructions. Do not conduct hack-squirt/injection applications during periods of heavy rainfall.

s. Herbicide buffer distances. Observe the following no-application buffer-widths, measured in feet, as map distance perpendicular to the bankfull elevation for streams, the upland boundary for wetlands, or the upper bank for roadside ditches. Widths are based on herbicide formula, stream type, and application method, during herbicide applications (Table 3). Before herbicide application begins, flag or mark the upland boundary of each applicable herbicide buffer to ensure that all buffers are in place and functional during treatment.

Table 3. Herbicide buffer distances by herbicide formula, stream type, and application method.

Herbicide

No Application Buffer Width (feet) Streams and Roadside Ditches with flowing or standing water present and Wetlands

Dry Streams, Roadside Ditches, and Wetlands

Broadcast Spraying

Spot Spraying

Hand Selective

Broadcast Spraying

Spot Spraying

Hand Selective

Labeled for Aquatic Use Aquatic Glyphosate 100 waterline waterline 50 None none Aquatic Imazapyr 100 15 waterline 50 None none Aquatic Triclopyr-

TEA

Not Allowed

15 waterline Not

Allowed None none

Low Risk to Aquatic Organisms

Imazapic 100 15 bankfull elevation

50 None none

Clopyralid 100 15 bankfull elevation

50 None none

Metsulfuron-methyl 100 15 bankfull elevation

50 None none

Moderate Risk to Aquatic Organisms

Imazapyr 100 50 bankfull elevation

50 15 bankfull elevation

Sulfometuron-methyl

100 50 5 50 15 bankfull elevation

Chlorsulfuron 100 50 bankfull elevation

50 15 bankfull elevation

High Risk to Aquatic Organisms Picloram 100 50 50 100 50 50 Sethoxydim 100 50 50 100 50 50

36. Actions Requiring Stormwater Management20

a. Provide stormwater management for any project that will:

i. Increase the contributing impervious area within the project area

ii. Construct new pavement that increases capacity or widens the road prism.

iii. Reconstructs pavement down to subgrade.

iv. Rehabilitate or restore a bridge to repair structural or functional deficiencies that are too complicated to be corrected through normal maintenance, except for seismic retrofits that make a bridge more resistant to earthquake damage (e.g., external post-tensioning, supplementary dampening) but do not affect the bridge deck or drainage.

v. Replace a stream crossing

vi. Change stormwater conveyance

b. Stormwater management is not required for the following pavement actions: minor repairs, patching, chip seal, grind/inlay, overlay or resurfacing (i.e., nonstructural pavement preservation, a single lift or inlay).

c. Stormwater management plans will consist of:

i. Low impact development.

ii. Water quality (pollution reduction) treatment for post-construction stormwater runoff from all contributing impervious area.

iii. Water quantity treatment (retention or detention facilities), unless the outfall discharges directly into a major water body (e.g., mainstem Columbia River, Willamette River (downstream of Eugene), large lakes, reservoir, ocean, or estuary).

Retention or detention facilities must limit discharge to match pre-developed discharge rates (i.e., the discharge rate of the site based on its natural groundcover and grade before any development occurred) using a continuous simulation for flows between 50% of the 2-year event and the 10-year flow event (annual series).

d. Stormwater management plans will:

i. Explain how runoff from all contributing impervious area that is within or contiguous with the project area will be managed using site sketches, drawings, specifications, calculations, or other information commensurate with the scope of the action.

ii. Identify the pollutants of concern.

iii. Identify all contributing and non-contributing impervious areas that are within and contiguous with the project area.

iv. Describe the BMPs that will be used to treat the identified pollutants of concern, and the proposed maintenance activities and schedule for the treatment facilities.

20 The most efficient way for an applicant or the Corps to prepare and submit a stormwater management plan for NMFS’ review is to attach a completed Checklist for Submission of a Stormwater Management Plan (the Checklist, ODEQ updated 2012, or the most recent version) with the electronic notification when it is sent to the SLOPES mailbox. However, stormwater conveyance to a DEQ permitted Municipal Separate Storm Sewer System (MS4) or consistency with any other program acknowledged by DEQ as adequate for stormwater management will not meet the requirements of this opinion unless NMFS determines that the facility accepting the stormwater will provide a level of treatment that is equivalent to that called for in this opinion. The Checklist and guidelines for its use are available from NMFS or the ODEQ in Portland Oregon. The latest version of the Checklist is also available online in a portable document format (pdf) through the ODEQ Water Quality Section 401 certification webpage (ODEQ 2014) at http://www.deq.state.or.us/wq/sec401cert/process.htm#add (see “Post Construction Stormwater Management Plan”).

v. Provide a justification for the capacity of the facilities provided based on the expected runoff volume, including, e.g., the design storm, BMP geometry, analyses of residence time, as appropriate.

vi. Include the name, email address, and telephone number of the person responsible for designing the stormwater management facilities that NMFS may contact if additional information is necessary to complete the effects analysis.

vii. The proposed action will include a maintenance, repair, and component replacement plan that details what needs to be done, when, and by whom for each facility.

e. All stormwater quality treatment practices and facilities will be designed to accept and fully treat the volume of water equal to 50% of the cumulative rainfall from the 2-year, 24-hour storm for that site, except as follows: climate zone 4 – 67%;

climate zone 5 – 75%; and climate zone 9 – 67% (Figure 1). (ESA-listed species considered in this opinion are unlikely to occur in Zones 5 or 9.) A continuous rainfall/runoff model may be used instead of runoff depths to calculate water quality treatment depth.

Figure 1. Water Quality Design Storm Factor – Oregon Climate Regions (Oregon Department of Transportation 2008)

f. Use low impact development practices to infiltrate or evaporate runoff to the maximum extent feasible. For runoff that cannot be infiltrated or evaporated and therefore will discharge into surface or subsurface waters, apply one or more of the following specific primary treatment practices, supplemented with appropriate soil amendments:

i. Bioretention cell

ii. Bioslope, also known as an “ecology embankment”

iii. Bioswale

iv. Constructed wetlands

v. Infiltration pond

vi. Media filter devices with demonstrated effectiveness. Propriety devices should be on a list of “Approved Proprietary Stormwater Treatment Technologies” i.e., City of Portland (2008) Stormwater Management Manual.

Bureau of Environmental Services.

vii. Porous pavement, with no soil amendments and appropriate maintenance

viii. All stormwater flow control treatment practices and facilities will be designed to maintain the frequency and duration of instream flows generated by storms within the following end-points:

1. Lower discharge endpoint, by U.S. Geological Survey (USGS) flood frequency zone:

a. Western Region = 42% of 2-year event

b. Eastern Region

i. Southeast, Northeast, North Central = 48% of 2-year event

ii. Eastern Cascade = 56% of 2-year event

2. Upper discharge endpoint

a. Entrenchment ratio <2.2 = 10-year event, 24-hour storm

b. Entrenchment ratio >2.2 = bank overtopping event

g. When conveyance is necessary to discharge treated stormwater directly into surface water or a wetland, the following requirements apply:

i. Maintain natural drainage patterns.

ii. To the maximum extent feasible, ensure that water quality treatment for contributing impervious area runoff is completed before commingling with offsite runoff for conveyance.

iii. Prevent erosion of the flow path from the project to the receiving water and, if necessary, provide a discharge facility made entirely of manufactured elements (e.g., pipes, ditches, discharge facility protection) that extends at least to OHW.

h. NMFS review and approval. NMFS will review proposed stormwater treatment and new or upgraded stormwater outfalls plans.

37. Site Restoration

a. Restore any significant disturbance of riparian vegetation, soils, stream banks or stream channel.

b. Remove all project related waste; e.g., pick up trash, sweep roadways in the project area to avoid runoff-containing sediment, etc.

c. Obliterate all temporary access roads, crossings, and staging areas.

d. Loosen compacted areas of soil when necessary for revegetation or infiltration.

e. Although no single criterion is sufficient to measure restoration success, the intent is that the following features should be present in the upland parts of the project area, within reasonable limits of natural and management variation:

i. Human and livestock disturbance, if any, are confined to small areas necessary for…