J_5_c_20230314-NWPVerLtr.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, SEATTLE DISTRICT

4735 EAST MARGINAL WAY SOUTH, BLDG 1202

SEATTLE, WA 98134-2388

Regulatory Branch March 9, 2021

Ms. Candace McKinley U.S. Bureau of Reclamation 1917 Marsh Road Yakima, Washington 98901

Reference: NWS-2019-877 U.S. Bureau of Reclamation (Cle Elum Fish Passage Facility and Splitter Wall)

Dear Ms. McKinley:

We have reviewed your application to install a concrete splitter wall and excavate a pool for an adult fish handling facility to provide fish passage over the Cle Elum Lake Dam. Up to 9,900 cubic yards of stream gravels will be excavated over 15,500 square feet and up to 15,264 cubic yards of fill materials will be placed over 26,500 square feet to accomplish these actions. A 500-foot-long coffer dam will be installed by placing up to 2,100 cubic yards of spawning gravels (to remain in place) over 10,000 square feet of the Cle Elum River to anchor a bladder dam and de-water the stilling basin during construction. The purpose of the project is to provide fish passage at the Cle Elum Dam as identified in the Yakima Basin Integrated Plan near Ronald, Kittitas County, Washington. Based on the information you provided to us, Nationwide Permit (NWP) 27, Aquatic Habitat Restoration, Establishment, and Enhancement Activities (Federal Register December 27, 2021 Vol. 86, No. 245), authorizes your proposal as depicted on the enclosed drawings dated May 26, 2020.

In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 27, Terms and Conditions and the following special conditions:

a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species, in particular the Mid-Columbia River Steelhead and Bull Trout. In order to legally take a listed species, you must have a separate authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA Section 7 consultation Biological Opinion (BO) with non-discretionary “incidental take” provisions with which you must comply). The

-2-enclosed BO(s) prepared by the National Marine Fisheries Service (NMFS) dated October 28, 2020 and the U.S. Fish and Wildlife Service (USFWS) dated February 5, 2021 contain(s) mandatory terms and conditions to implement the reasonable and prudent measures that are associated with the specified “incidental take” in the BO(s) (USFWS Reference Number 01EWFW00-2020-F- 0261, NMFS Reference Number WCRO-2020-01573). Your authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the attached BO(s).

These terms and conditions are incorporated by reference in this permit. Failure to comply with the commitments made in this consultation constitutes non-compliance with the ESA and your Corps permit. The USFWS/NMFS is the appropriate authority to determine compliance with ESA.

b. To ensure the project results in a net increase in aquatic resource functions and services, an as-built report and drawings shall be submitted within six months of project completion. This report should state if any adaptive management is required to ensure a net increase in aquatic resource functions; if this work would require additional impacts to waters of the U.S., you must wait for approval by the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch, before commencing that work. The as-built report must prominently display the reference number NWS-2019-877.

The U.S. Bureau of Reclamation completed National Historic Preservation Act, Section 7 Endangered Species Act (ESA) consultation and Magnuson Stevens Act, Essential Fish Habitat (EFH) consultation for the proposed activity [National Marine Fisheries Service reference [WCRO-2020-01573], U.S. Fish and Wildlife Service reference [01EWFW00-2020-F-0261] (collectively called the Services)]. For the purpose of this Department of the Army authorization, we have determined this project will comply with the requirements of these laws provided you comply with all of the permit conditions. We have determined the permit action is sufficiently addressed in their ESA and EFH consultation documents. By this letter we are advising you and the Services, in accordance with 50 CFR 402.07 and 50 CFR 600.920(b), that this agency has served as the lead Federal agency for the ESA and EFH consultation responsibilities for the activity described above.

The authorized work complies with the Washington State Department of Ecology’s (Ecology) Water Quality Certification (WQC) requirement for this NWP. No further coordination with Ecology for WQC is required.

You have not requested a jurisdictional determination for this proposed project. If you believe the Corps does not have jurisdiction over all or portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information

-3-to complete the JD and work authorized in this letter may not occur until the JD has been completed.

Our verification of this NWP authorization is valid until March 14, 2026, unless the NWP is modified, reissued, or revoked prior to that date. If the authorized work for the NWP authorization has not been completed by that date and you have commenced or are under contract to commence this activity before March 14, 2026, you will have until March 14, 2027, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project.

You are cautioned that any change in project location or plans will require that you submit a copy of the revised plans to this office and obtain our approval before you begin work. Deviating from the approved plans could result in the assessment of criminal or civil penalties.

Upon completing the authorized work, you must fill out and return the enclosed

Certificate of Compliance with Department of the Army Permit. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey.

These documents and information about our program are available on our website at www.nws.usace.army.mil, select “Regulatory Branch, Permit Information” and then “Contact Us.” If you have any questions, please contact me at david.j.moore@usace.army.mil or (206) 316-3166.

Sincerely, David Moore, Project Manager Regulatory Branch

Enclosures cc: letter only via email to Washington Department of Ecology, Federal Permit Coordinator at: ecyrefedpermits@ecy.wa.gov