VA Alameda Final 404 Permit.pdf

DEPARTMENT OF THE ARMY

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

450 GOLDEN GATE AVENUE

SAN FRANCISCO, CALIFORNIA 94102

DEPARTMENT OF THE ARMY PERMIT

PERMITTEE: Bonnie Graham, Health Care System Director, U.S. Department of Veteran Affairs (VA)

PERMIT NO.: 2012-00286S

ISSUING OFFICE: San Francisco District

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:

PROJECT DESCRIPTION: The project will discharge fill within wetland and other waters of the U.S. as part of the construction of the following:

• 20-acre Veterans Health Administration outpatient clinic, Veterans Benefits Administration outreach office and associated parking;

• 80-acre National Cemetery Administration columbarium national cemetery;

• Conservation management office on 2.4 acres to support a least tern colony protected under the US Fish and

Wildlife (USFWS) biological opinion (BO) for this project;

• North access road, with a main access road along the northern portion of the VA Development Area and a branching network of on-site roads and on-site utility infrastructure On 11 acres;

• Storm water management system improvements, including two new 36-inch diameter drainage pipes and a 24-inch diameter pipe installed for future City use that would discharge to the Oakland Inner Harbor (Harbor) and Bay. Two temporary cofferdams would be installed to dewater the work area for the new outfalls, and

• Onsite mitigation, including a 10.6-acre tidal marsh creation area (including tidal marsh and transition zone) and a 14.8-acre tidal marsh enhancement area.

The project will be implemented in a phased approach. Phase 1 construction would include the onsite tidal marsh mitigation area, the outpatient clinic, the Veterans Benefits Administration outreach office, the conservation management office, the storm water management system improvements, and the first phase of the National Cemetery Administration columbarium national cemetery. The 12 projected future phases of construction would be to expand the National Cemetery Administration columbarium national cemetery, as needed, and are estimated to occur every 10 years over the next 120-plus years. Future phases would be permitted as needed.

All work shall be completed in accordance with the plans and drawings titled - USACE File #2012-00286S. Alameda Point Multi-Specialty Outpatient Clinic and Columbarium Project, Design Plans, Alameda County, California, July 12, 2021, in 80 sheets,- provided as enclosure 1.

PROJECT LOCATION: City and County of Alameda, California

PERMIT CONDITIONS:

GENERAL CONDITIONS:

1. The time limit for completing the work authorized ends on September 2, 2026. 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 the appropriate VA cultural resources office and this office of what you have found. VA, as lead federal agency and working with the Corps of Engineers, 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. For your convenience, a copy of the water quality certification or waiver is attached. 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.

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.

7. You understand and agree that, if future operations by the United States require the removal, relocation or other alteration of the structure or work authorized herein, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, you will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.

SPECIAL CONDITIONS:

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 California least tern shall be fully implemented as stipulated in the Biological Opinion titled "Biological Opinion on the Proposed Naval Air Station Alameda Disposal and Reuse Project in the City of Alameda, Alameda County, California," (File No. 81420-2009-F-0952- 4, pages 44-45), dated August 9, 2012. Project authorization under this permit 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 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.

2. The USFWS and NMFS concurred with the determination that the project was not likely to adversely affect western snowy plover, Central California Coast steelhead, North American green sturgeon, and designated critical habitat for these species. This concurrence was premised, in part, on project work restrictions outlined in enclosures 2 and 3, respectively. These work restrictions are incorporated as special conditions to this authorization for your project to ensure unauthorized incidental take of species and loss of critical habitat does not occur.

3. You have purchased 3.57 mitigation credits from the San Francisco Bay Wetland Mitigation Bank for impacts

ENG FORM 1721, Nov 86 2 (33 CFR pt. 325 (Appendix A)) that will result from Phase I of the project. Future phases of the project shall be mitigated on-site as outlined in the "Alameda Point Veterans Affairs Project Final Wetland Mitigation and Monitoring Plan, Project No. 3898- 03," revised June 2, 2021. To compensate for the loss of 10.9 acres of wetland waters of the U.S., you shall establish 7.3 acres of tidal wetlands and 3.3 acres of transition zone habitat; and you shall enhance 14.8 acres of tidal wetland, salina and transition zone habitat. Annual monitoring reports shall be submitted to the Corps by December 31 of years 1-5 following construction of the mitigation wetlands. These reports shall include dated photographs, bi-annual monitoring for vegetation height in the wetland mitigation area; percent cover of the created and enhanced habitats, native plant diversity; percent cover of CAL-IPC invasive plant species rated as "High"; topographic change and tidal inlet stability; and accumulation of trash and/or inorganic debris.

Compensatory mitigation shall be considered successful when the following success criteria are achieved: in the tidal wetland area, native plant diversity is greater than the baseline measured; invasive plant cover is no more than 5% cover of Cal-IPC "High" species or moderate forbs; vegetation height is less than 2 feet; in the enhanced transition zone, percent cover native and nonnative species are greater than 60%, native plant diversity is greater than the baseline measured; invasive plant cover is no more than 5% cover of Cal-IPC "High" species or moderate forbs; vegetation height is less than 2 feet. If at any time it appears that success criteria will not be met, contingency measures will be developed and presented to the Corps for review and approval prior to implementation.

4. Your responsibility to complete the required compensatory mitigation as set forth in Special Condition 3 will not be considered fulfilled until you have demonstrated mitigation success and have received written verification from the U.S. Army Corps of Engineers. This includes the final, signed Conservation Land Use Agreement between the Department of Veterans Affairs and the U.S. Army Corps of Engineers.

5. A post construction report shall be submitted 45 days after the conclusion of construction activities. The report shall document construction activities and contain as-built drawings (if different from drawings submitted with application) and include before and after photographs.

FURTHER INFORMATION:

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

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

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

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

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

ENG FORM 1721, Nov 86 3 (33 CFR pt. 325 (Appendix A)) 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.

b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate. (See Item 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 C.F.R. § 325.7 or enforcement procedures such as those contained in 33 C.F.R. §§ 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to 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 C.F.R. § 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.

ENG FORM 1721, Nov 86 4 (33 CFR pt. 325 (Appendix A))

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

q/2_1/21

(DATE)

Bonnie S. Graham, Director, VA SFHCS (PERMITTEE)

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

Katerina Galacatos Chief, South Branch Regulatory Division

(DATE)

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.

(TRANSFEREE) (DATE)

ENG FORM 1721, Nov 86 5 (33 CFR pt. 325 (Appendix A))

September 27, 2021