NJDEP FCD-WQC No. 0000-03-0035.1 CDT230001.pdf

March 16, 2023 Michael Oseback Acting Chief, Operations Support Branch Department of the Army New York District, Corps of Engineers Jacob K. Javits Building 26 Federal Plaza New York, New York 10278-0090

RE: Federal Consistency Determination / Water Quality Certification File and Activity No.: 0000-03-0035.1 CDT230001 Project: Maintenance Dredging of New York and New Jersey Harbor – Arthur Kill 50 ft.

Reach Federal Navigation Project

Dear Mr. Oseback:

This letter is forwarded in response to your January 17, 2023, request for a Federal Consistency (FC), as required by Section 307 of the federal Coastal Zone Management Act (16 USC 1451 et seq.) and Water Quality Certification (WQC) as required by Section 401 of the federal Clean Water Act (33 USC 1251 et seq. The request included the sediment testing data as well as specifications for the maintenance dredging of the Arthur Kill 50 ft. Reach on plans cited below. The proposed maintenance dredging would involve the removal of approximately 464,540 cubic yards (CY) of material to a depth of -50 feet mean lower low water (MLLW) plus 1 foot of allowable overdredge, with placement at a state-permitted upland placement site.

The request for a FC/WQC for the contract was published in the DEP Bulletin on February 15, 2023, with the close of the 15-day comment period ending on March 2, 2023. No comments were submitted on the DEP public notice.

Beneficial Use Location for Non-HARS Material

Regarding the 464,540 CY of non-HARS material that was tested in accordance with NJDEP approved sediment sampling plan, the Army Corps of Engineers (NY District) has requested that the federal consistency determination be generic in terms of the potential upland placement site(s) for this material. A subsequent request to amend this consistency determination will be submitted to the NJDEP Division of Land Resource Protection (Department) by the NY District once the apparent low bidder for the contract has identified a fully permitted or approved upland placement site(s). The request to amend this determination will be submitted by the Corps a minimum of two weeks prior to the award of the contract for Department review and approval. The Department agrees with this approach.

New Jersey is an Equal Opportunity Employer l Printed on Recycled Paper and Recyclable

PHILIP D. MURPHY DEPARTMENT OF ENVIRONMENTAL PROTECTION SHAWN M. LATOURETTE

Governor Commissioner

SHEILA Y. OLIVER

Lt. Governor

New Jersey is an Equal Opportunity Employer l Printed on Recycled Paper and Recyclable

Division of Land Resource Protection Mail Code 501-02A

P.O. Box 420 Trenton, New Jersey 08625-0420 www.nj.gov/dep/landuse

Federal Consistency and Water Quality Certification

The Rules on Coastal Zone Management (N.J.A.C. 7:7E) constitute New Jersey’s enforceable policies under its federally approved Coastal Zone Management Program. The Maintenance Dredging of the Arthur Kill 50 foot Reach New Jersey Federal Navigation Project has been reviewed under the following Rules on Coastal Zone Management: Finfish migratory pathways (7:7-9.5), Navigation Channels (7:7- 9.7), Ports (7:7-9.11), Submerged Infrastructure Routes (7:7-9.12), Historic and Archaeological Resources (7:7-9.13), Endangered or threatened wildlife or plant species habitats (7:7-9.36 ), Maintenance dredging (7:7-12.6), Dredged material placement on land (7:7-15.12), Marine Fish and Fisheries (7:7- 16.2), and Water Quality (7:7-16.3). Based on the materials submitted within the subject federal consistency request, the Department has CONDITIONALLY determined that the dredging of this Contract is consistent with the Rules on Coastal Zone Management and New Jersey’s federally approved Coastal Management Program, provided the NY District complies with the requirements specified in the above non-HARS material section of this authorization.

The Department also reviewed this Contract for potential water quality impacts. Provided that the following conditions are met, it has been determined that this project is not likely to cause a violation of New Jersey’s Surface Water Quality Standards (N.J.A.C. 7:9B-1.1 et seq.). Therefore, this determination includes the State’s Water Quality Certification pursuant to Section 401 of the federal Water Pollution Control Act (33 USC 1251 et seq.) subject to the following conditions. It is noted that this Water Quality Certificate is valid for a term of five years and expires five years from the date on the first page of this determination.

PROJECT SPECIFIC CONDITIONS:

1. Dredging is prohibited from March 1 to May 31 of each year in Arthur Kill Reach (Elizabeth Port Reach) in order to protect migrating and spawning anadromous fishes including Atlantic Sturgeon.

2. Dredging is prohibited within the area bounded by the channel edge and a distance extending shoreward one half the channel width from January 15 to May 31 of each year in North of Shooters Island Reach to protect winter flounder early life stages.

3. All sediments from this project shall be removed using a closed clamshell environment bucket.

4. The permittee shall employ the services of an independent dredging inspector to monitor dredging activities twice per week. The permittee shall submit the resume of the dredging inspector to the Department for review and receive written approval prior to the initiation of dredging.

5. The dredge shall be operated so as to control the rate of descent of the bucket so as to maximize the vertical cut of the clamshell bucket while not penetrating the sediment beyond the vertical dimension of the open bucket (i.e., overfilling the bucket). This will reduce the amount of free water in the dredged material, will avoid overfilling the bucket, and minimize the number of dredge bucket cycles needed to complete the dredging contract. The dredging contractor shall use appropriate software and sensors on the dredging equipment to ensure consistent compliance with this condition during the entire dredging operation. The independent dredging inspector shall monitor the operation of the software and sensors during the inspections as specified in the below conditions. Any malfunction of the software and sensors on the dredge at any time shall be immediately reported to the independent dredging inspector and the permittee by the dredging contractor and shall be immediately repaired to working order.

6. The closed clamshell environmental bucket shall be equipped with sensors to ensure complete closure of the bucket before lifting the bucket. Said sensors shall be operational during the entire dredging operation.

7. The closed clamshell environmental bucket shall be lifted slowly through the water, at a rate of 2 feet per second or less.

8. Dredged material shall be placed deliberately in the barge in order to prevent spillage of material overboard.

9. The discharge (i.e., “overflow”) of water from the barge/scow into which dredged material is placed is prohibited.

10. All barges or scows used to transport sediment shall be of solid hull construction or be sealed with concrete.

11. The gunwales of the dredge scows shall not be rinsed or hosed during dredging except to the extent necessary to ensure the safety of workers maneuvering on the dredge scow.

12. All decant water holding scows shall be water tight and of solid hull construction.

13. Decant water from this project may only be discharged within the channel from where the sediments originated, in close proximity to the dredging contract area. Discharge to another receiving waterbody requires prior approval from the Department, and may require a New Jersey Discharge Pollutant Elimination System/Discharge to Surface Water (NJDPES/DSW) permit.

14. All decant water shall be held in the decant holding scow a minimum of 24 hours after the last addition of water to the decant holding scow. Said water contained in the decant holding scow may only be discharge after this mandatory 24-hour retention time.

a. Should the contractor wish to reduce the required holding time, the contractor shall demonstrate that the reduced holding time is sufficient to meet a total suspended solids (TSS) background value of 30 mg/L. This TSS action level is consistent with the ambient TSS results presented in the NY District study entitled "NY and NJ Harbor Deepening Project - Total Suspended Solids (TSS) Monitoring, Interim Report" (January 2006). The total suspended solids shall be determined through gravimetric analysis. No discharge shall be permitted from the decant holding scow until the results of the gravimetric analysis have confirmed that the 30 mg/L background level has been achieved. No additional water shall be added to the decant holding scow between the time of sample acquisition and discharge. Upon successful demonstration that the reduced holding time is sufficient to meet the TSS background level of 30 mg/L, the monitoring of TSS may be suspended and the demonstrated settling time shall replace the 24-hour minimum. A successful demonstration of the reduced holding time efficiency shall be determined once three consecutive TSS analyses have confirmed that the 30 mg/L action level has been achieved by the reduced holding time.

b. Should the contractor wish to demonstrate this reduced holding time, all records including time of last addition of decant water into the scow, time of TSS sampling and the results of TSS sampling shall be submitted to the NJDEP as soon as they become available, together with a request for a reduced holding time.

15. During pumping of the decant water from the holding scow, great care shall be taken to avoid re-suspending or pumping sediment which has settled in the decant holding scow.

16. The dredging contractor shall complete and submit the attached Dewatering Form to the independent dredging inspector on a weekly basis as part of the Quality Control Report provided to the permittee. Said Dewatering Form shall be certified by the independent dredging inspector that they have witnessed the dewatering process during the preceding week. The permittee shall submit the completed Dewatering Form with appropriate certifications by email to the Office of Dredging and Sediment Technology for the preceding week.

17. The independent dredging inspector shall perform inspections of the dredging contract a minimum of twice per week using the attached WQC Field Inspector form. The permittee shall submit the completed inspection forms to the Department on at least a weekly basis.

18. REPORTING REQUIREMENTS: At the completion of the project, the permittee shall submit the following information to the Department. This information shall be submitted within three months of completion of dredging.

Start and finish date of work order(s) Post-dredge hydrographic survey

APPROVED PLANS:

The drawing(s) hereby approved consists of five (5) sheets entitled:

“NEW YORK AND NEW JERSEY CHANNELS ARTHUR KILL PLANS AND SPECS

SURVEY,” dated November 29, 2022, unrevised:

a. “VH-103,” sheet 3 of 7

b. “VH-104,” sheet 4 of 7

c. “VH-105,” sheet 5 of 7

d. “VH-106,” sheet 6 of 7

e. “VH-107,” sheet 7 of 7

If you have any questions regarding this letter, please contact Gary Nickerson by email at gary.nickerson@dep.nj.gov. Please reference the Division’s file number in all communication.

Sincerely, Colleen Keller, Assistant Director Division of Land Resource Protection