PWS_Attachment_C_-_2B_Project_404_Permit.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, SACRAMENTO DISTRICT

1325 J STREET

SACRAMENTO CA 95814-2922

DEPARTMENT OF THE ARMY PERMIT

Permittee: U.S. Bureau of Reclamation Attn: Donald Portz San Joaquin River Program 2800 Cottage Way Sacramento, California 95825

Permit Number: SPK-2010-00319

Issuing Office: U.S. Army Engineer District, Sacramento

Corps of Engineers 1325 "J" Street Sacramento, California 95814-2922

NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer.

You are authorized to perform work in accordance with the terms and conditions specified below. A notice of appeal options is enclosed.

Project Description:

The project involves the construction of a fish passage project for Reach 2B of the San Joaquin River. The project proposes to permanently impact up to 113.54 acres of wetlands and up to 212.54 acres of other waters of the United States with the construction of this project. This project additionally proposes to temporarily impact up to 19.23 acres of wetlands and up to 44.72 acres of other waters of the United States during the construction process. The main elements of this project include: 1. Building setback levees capable of conveying flows up to 4,500 cubic feet per second with three feet of freeboard, and breaching portions of the existing berms constructing the existing river channel. 2. Restoring floodplain habitat within the constructed setback levees to provide benefits to salmonids and other native fishes. 3. Constructing a channel and structures capable of conveying up to 4,500 cfs of Restoration Flows around the Mendota Pool. 4.

Constructing structures capable of conveying up to 2,000 cfs from Reach 2B to Mendota Pool. This project includes a fish passage structure within the Compact Bypass Control Structure, and a fish screen and bypass system for flows entering Mendota Pool.

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All work is to be completed in accordance with the Compact Bypass with Consensus- Based Floodplain and Bifurcation Structure Plans, dated 7-11 December 2015, and any future amendments.

Project Location:

The approximately 5,610.66-acre project site is located within the San Joaquin River, and the Mendota Pool. The site is located within Sections 15 - 29, Townships 13 South, Range 15 East, MDB&M, Latitude 36.78021°, Longitude -120.32983°, Madera and Fresno Counties, California, and can be seen on the Firebaugh, Mendota Dam, and Tranquility USGS Topographic Quadrangles.

Permit Conditions:

General Conditions:

1. The time limit for completing the work authorized ends on March 7, 2032. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached.

2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity, or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area.

3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.

4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization.

5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit.

For your convenience, a copy of the certification is attached if it contains such conditions.

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6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.

Special Conditions:

1. You shall employ a wetland scientist, who is familiar with this portion of the San Joaquin River, to continuously monitor construction activities in the vicinity of waters of the United States to ensure against unauthorized activity during construction. The monitor shall be on-site during all construction activities when work is being conducted within the ordinary high water mark of the San Joaquin River. This scientist shall monitor the construction activities and have the ability to stop work in waters of the United States if the proposed project is not being constructed as designed. If work is halted, the monitor shall contact this Corps Office immediately and give detailed information about the project status.

2. This Corps permit does not authorize you to take an endangered species, in particular San Joaquin kit fox (Vulpes macrotis mutica), blunt-nosed leopard lizard (Gambelia sila), palmate-bracted bird’s beak (Cordylanthus palmatus), California jewelflower (Caulanthus californicus), San Joaquin wooly threads (Monolopia (=Lembertia) congdonii), giant garter snake (Thamnophis gigas), Fresno kangaroo rat (Dipodomys nitratoides exilis), least Bell’s vireo (Vireo bellii pusillus), California Central Valley steelhead (Oncorhynchus mykiss), and Central Valley spring-run Chinook salmon (Oncorhynchus tshawytscha). In order to legally take a listed species, you must have separate authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or a Biological Opinion (BO) under ESA Section 7, with "incidental take" provisions with which you must comply). The enclosed U.S. Fish and Wildlife Service (USFWS) BO (Number 08FBDT00-2016-F-0167, dated August 9, 2016) and the National Marine Fisheries Service (NMFS) BO (Number WCR-2016-4138, dated October 24, 2016) contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with "incidental take" that is also specified in the BO’s. 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, which terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO’s, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non-compliance with your Corps permit. The USFWS and the NMFS are the appropriate authority to determine compliance with the terms and conditions of their BO’s, and with the ESA.

3. To ensure your project complies with the Magnuson-Stevens Fishery Conservation and Management Act, you must implement all of the mitigating measures and Essential Fish Habitat Recommendations identified in the above NMFS document, including those ascribed to the Corps therein.

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4. You shall implement the enclosed September 27, 2016, Programmatic Memorandum of Agreement (MOA), entitled Programmatic Agreement Among the Bureau of Reclamation, Mid-Pacific Region, the U.S. Army Corps of Engineers, Sacramento District, and the California State Historic Preservation Officer Regarding Compliance with Section 106 of the National Historic Preservation Act Pertaining to the Implementation of the San Joaquin River Restoration Program Mendota Pool Bypass and Reach 2B Improvements Project, and signed by these entities, in its entirety. Your office, the Bureau of Reclamation, has been designated the lead federal agency responsible for implementing and enforcing the MOA as signed. If you fail to comply with the implementation and associated enforcement of the MOA, this office may determine that you are out of compliance with the conditions of your permit and suspend the permit. Suspension may result in modification or revocation of the authorized work.

5. Within 60 days following completion of the authorized work or at the expiration of the construction window of this permit, whichever occurs first, you shall submit as-built drawings and a description of the work conducted for this project, including any mitigation areas to this office for review. The drawings shall be signed and sealed by a registered professional engineer and include the following:

a. The Department of the Army Permit number: SPK-2010-00319.

b. A plan view drawing of the location of the authorized work footprint (as shown on the permit drawings) with an overlay of the work as constructed in the same scale as the attached permit drawings. The drawing should show all "earth disturbance," wetland impacts, structures, and the boundaries of any on-site and/or off-site mitigation or avoidance areas. The drawings shall contain, at a minimum, 1-foot topographic contours of the entire site.

c. Ground color photographs of the completed work. The camera positions and view-angles of the ground photographs shall be identified on a map, aerial photograph, or project drawing.

d. A description and list of all minor deviations between the work as authorized by this permit and the work as constructed. Clearly indicate on the as-built drawings the location of any deviations that have been listed.

6. At least 30 days prior to initiation of construction activities in waters of the United States authorized by this permit, you shall submit to this office pre-construction site photographs of the project area, which have been taken no more than 60 days prior to initiation of construction activities in waters of the United States authorized by this permit. The camera positions and view angles of pre-construction photographs shall be identified on a map, aerial photo, or project drawing. Construction locations shall include all major project features and waters of the United States, including avoidance

-5-and aquatic habitat areas to be created. This submittal shall also outline the expected start and completion dates for each phase of the proposed project. This requirement does not apply to any geotechnical explorations needed for the construction of this project.

7. To ensure success of the establishment, re-establishment, enhancement, or preservation of aquatic resources you shall monitor created aquatic habitat areas for a minimum of ten years or until the performance standards described in the approved Mendota Pool Bypass and Reach 2B Improvements Project, Habitat Mitigation and Monitoring Plan dated December 2018, are met, whichever is greater. This period shall commence upon completion of the construction of the created aquatic habitat areas for each phase of the project. You shall demonstrate continued success of the created aquatic habitat areas, without human intervention, for three consecutive years after all of the final performance standards have been met. If the created wetlands habitat is not functioning as riverine wetlands habitat, at any time, this office may determine that this created habitat is not in compliance of this permit and shall require remedial action to improve the functions of the created wetland/waters habitat.

a. For each phase of the project, you shall provide this office with monitoring reports annually for years 1 through 5, and then for years 7 and 10 unless remedial action requires additional monitoring reports to be submitted. These reports shall be provided digitally to our office for review.

b. You shall submit annual monitoring reports to this office by December 31st for each year of each year that a monitoring report is required, and for each additional year if remediation is required, until the created wetlands habitat is fully functioning.

Annual reports that are submitted prior to construction will include updates on project design refinements and project schedule updates. Once the project has been constructed, the annual reports shall include any adaptive management changes to the conservation of the created habitat.

8. Once this project is constructed, you shall inform the Corps in writing that all of the wetland and waters habitat creation lands are established as river habitat and fully protected in perpetuity as part of the San Joaquin River Restoration Area. You shall also provide to the Corps the current long-term maintenance plan for the created aquatic habitat areas for the Corps’ approval prior to finalization.

Further Information:

1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to:

( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).

( ) Section 404 of the Clean Water Act (33 U.S.C. 1344).

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( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).

2. Limits of this authorization.

a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law.

b. This permit does not grant any property rights or exclusive privileges.

c. This permit does not authorize any injury to the property or rights of others.

d. This permit does not authorize interference with any existing or proposed Federal projects.

3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following:

a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes.

b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest.

c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit.

d. Design or construction deficiencies associated with the permitted work.

e. Damage claims associated with any future modification, suspension, or revocation of this permit.

4. Reliance on Applicant's Data. The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided.

5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant.

Circumstances that could require a reevaluation include, but are not limited to, the following:

a. You fail to comply with the terms and conditions of this permit.

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b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (see 4 above).

c. Significant new information surfaces which this office did not consider in reaching the original public interest decision.

Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost.

6. Extensions. General Condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit.

Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit.

Name Date Title

Permittee

This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below

Kathy Norton Sr. Project Manager, Regulatory Division Date (For the District Engineer)

Donald E. Portz, Ph.D.

San Joaquin River Restoration Program Manager

March 7, 2022

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When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.

Name Date Title Transferee