McGregor Phase II - Permit Issuance - 01535.pdf

STATE OF WISCONSIN WQC (non-wetland) and Structure PERMIT

DEPARTMENT OF NATURAL RESOURCES IP-WC-2020-12-01535

The McGregor District U.S. Fish and Wildlife Service (USFWS) c/o Brandon Jones and the Saint Paul District U.S. Army Corps of Engineers (USACE) c/o Trevor Cyphers are hereby granted under Section 30.12(3m), 30.20 and 281.15, Wisconsin Statutes, and 33 U.S.C.S §1341 (CWA §401) a permit to place structures and materials on the bed of the Mississippi River - Pool 10, in the City of Prairie du Chien, Crawford County, also described as being in the NW1/4 of the NW1/4 of Section 36, Township 07 North, Range 07 West, subject to the following conditions:

PERMIT and Water QUALITY CERTIFICATION (Conditions apply to both Chapter 30 and WQC and hereafter are referred to as permit)

1. You must notify Weston Matthews at phone (715) 460-4089 or email weston.matthews@wisconsin.gov before starting construction and again not more than 5 days after the project is complete.

2. You must submit a series of photographs to the Department, within one week of completing work on the site. The photographs must be taken from different vantage points and depict all work authorized by this permit.

General Conditions

3. You must complete the project as described on or before 07/07/2023. If you will not complete the project by this date, you must submit a written request for an extension prior to expiration of the initial time limit specified in the permit. Your request must identify the requested extension date. The Department shall extend the time limit for an individual permit or contract for no longer than an additional 5 years if you request the extension before the initial time limit expires. You may not begin or continue construction after the original permit expiration date unless the Department extends the permit in writing or grants a new permit.

4. This permit does not authorize any work other than what you specifically describe in your application and plans and as modified by the conditions of this permit. If you wish to alter the project or permit conditions, you must first obtain written approval of the Department.

5. The Contractor's Work and Excavation Plan, Work and Placement Plan, and Water Quality

Plan shall be submitted to the Department for approval prior to any placement of dredge material.

6. Before you start your project, you must first obtain any permit or approval that may be required for your project by local zoning ordinances and by the U.S. Army Corps of Engineers. You are responsible for contacting these local and federal authorities to determine if they require permits or approvals for your project. These local and federal authorities are responsible for determining if your project complies with their requirements.

7. USACE shall conduct pre and post bathymetric surveys of the project area and submit to the

Department. As-Built surveys shall be completed and submitted to the Department prior to the close of the navigation season.

8. A plan of operation for material placement shall be provided before placement begins. This plan shall include a description of the placement approach utilized, the phasing of placement, the volumes provided by each dredge cut, hours of operation and other operational procedures necessary to navigate to the site. This could be provided within the narrative portion of each USACE Dredge Notice or the weekly project updates utilized in Phase I.

9. All vehicles and equipment used in wetlands and waterways must be checked at least once per workday for fluid (e.g. fuel, oil, hydraulic, coolant, etc.) leaks. All leaks must be immediately corrected before the equipment is allowed back into operation.

10. Upon reasonable notice, you shall allow access to your project site during reasonable hours to any Department employee who is investigating the project's construction, operation, maintenance or permit compliance.

11. The Department may modify or revoke this permit for good cause, including if the project is not completed according to the terms of the permit or if the Department determines the activity is detrimental to the public interest.

12. You must post a copy of this permit at a conspicuous location on the project site, visible from the waterway, for at least five days prior to construction, and remaining at least five days after construction. You must also have a copy of the permit and approved plan available at the project site at all times until the project is complete. All employees, consultants, and contractors who are working on the project must be made aware of the permit, its conditions, and its locations. All appropriate managers and supervisors in charge of or working on construction or compliance must be provided with copies of the permit.

13. Your acceptance of this permit and efforts to begin work on this project signify that you have read, understood and agreed to follow all conditions of this permit.

14. You, your agent, and any involved contractors or consultants may be considered a party to the violation pursuant to Section 30.292, Wis. Stats., for any violations of Chapter 30, Wisconsin Statutes, or this permit.

Access and Rare Species Restrictions

15. The project shall comply with Endangered Species Regulations and shall complete the required follow-up actions identified in the ER Log Jones_Misc Struct_01535.

16. Towboats will operate at low throttle, “no wake” speed in the East Channel and in access channels within the project area.

17. Towboats may not operate in the East Channel between the access channel into McGregor lake and the turning basin when water surface elevations at the McGregor gauge are lower than 613.4’ MSL1912 Datum (8.1’ McGregor Gauge). Only towboats and barges that draft 7’ or less will be allowed to operate when water surface elevations are above 613.4’. Barges that draft 9’ may be used when water surface elevations are 615.4’ (10.1’ McGregor Gauge) or higher. Alternately, the project area may be accessed through the interior of McGregor Lake under the following conditions:

• When Access Dredging AD5 is complete, towboats can access the project area at any water surface elevation so long as they transit using that channel.

• Before Access Dredging AD5 is complete, towboats drafting up to 7’ may access the project area within the Access Route AR2 boundaries when water surface elevations are at or above 616.61’ MSL19121 (11.31’ at McGregor gage). For towboats drafting up to 5’ the water surface elevation must be at or above 614.6’ MSL1912 (9.31’ McGregor gauge).

18. Towboats may only move one loaded barge at a time in the East Channel.

19. Fleeting and staging of barges is not allowed in the East Channel. Barges may be parked in the East Channel at the access pad only. Idling or pushing against the access pad should be limited to only what is necessary to park and maneuver barges. Barges may be staged in the project area within McGregor Lake when accessible.

20. USACE shall conduct mussel surveys 5 years post construction within the mussel relocation area/access dredge area to assess mussel recolonization. Pre - project mussel data was obtained via mussel relocation conducted June 5, 2020. Ongoing and annual Higgins eye Essential Habitat Area mussel monitoring at Prairie du Chien, including the East Channel, will continue per the 2000 Biological Opinion for Operation and Maintenance of the 9 Foot Navigation Project. These sampling events will include areas within the barge access route.

Prior to placement in subsequent seasons, mussel relocation will be conducted prior to access dredging and use of the off-load site. If a semi-permanent offloading pad is stabilized with sheet piling or rock, only an initial mussel relocation would be conducted. If the sand pad is removed annually, mussels will be removed from the footprint prior to each use. The sand pad and associated stabilization must be removed at the end of the HREP project.

If unplanned barge activity in the East Channel has potentially caused disturbances to the mussel resources, the Wisconsin DNR, USFWS, and the USACE will meet to determine the need for additional surveys.

21. Towboat travel will be restricted to the deepest part of the channel. The access route to the sand pad (East Channel) or construction area (McGregor Lake) will be marked by either physical or electronic buoys provided by the Corps of Engineers.

22. Towboats may not operate in the section of the East Channel North of the HWY 18 bridge to the turning basin.

Erosion Control Conditions

23. Sediment and erosion control best management practices (BMP’s) shall be installed prior to any construction activities, shall be inspected and maintained throughout construction and restoration activities, and shall be removed once final stabilization is achieved.

24. Construction shall be accomplished in such a manner as to minimize erosion and siltation into surface waters. Erosion control measures (such as silt fence and straw bales) must meet or exceed the technical standards of ch. NR 151, Wis. Adm. Code. The technical standards are found at: http://dnr.wi.gov/topic/stormwater/standards/const_standards.html .

25. All equipment used for the project including but not limited to tracked vehicles, barges, boats, hoses, sheet pile and pumps shall be de-contaminated for invasive and exotic viruses and species prior to use and after use.

http://dnr.wi.gov/topic/stormwater/standards/const_standards.html

The following steps must be taken every time you move your equipment into or out of Pool 10, as well as areas of known invasive species on land and near shore, to avoid transporting invasive and exotic viruses and species. To the extent practicable, equipment and gear used on infested waters shall not be used on other non-infested waters.

1. Inspect and remove aquatic plants, animals, and mud from your equipment.

2. Drain all water from your equipment that comes in contact with infested waters, including but not limited to tracked vehicles, barges, boats, hoses, sheet pile and pumps.

3. Dispose of aquatic plants, animals in the trash. Never release or transfer aquatic plants, animals or water from one waterbody to another.

4. Wash your equipment with hot (>140º F) and/or high pressure water,

- OR -

Allow your equipment to dry thoroughly for 5 days.

26. Appropriate erosion control measures must be in-place and effective during every phase of this project.

27. Erosion control measures must be in place at the end of each working day.

28. Erosion control measures must be inspected with necessary repairs or maintenance performed when erosion control measures are disturbed/needing repairs.

Water Quality and Dredging Conditions

29. You are authorized to dredge to the dimensions and quantities submitted in the applications and plans.

30. Borrow areas used for the construction of island bases and the construction pads shall be comprised of coarse materials (granular fill material) with a maximum fine content of 10% (P200 < 10%). Granular fill material shall be obtained from approved dredge cuts and placement sites in Pool 10.

31. Hydraulic placement of fine fill shall utilize properly designed and operated containment cells to capture solids to achieve the specified effluent limitations described in Item 4 below.

32. Fine Material Borrow Sites - Fine material shall be obtained from the designated fine borrow areas Habitat dredging areas D4, D4A, D5, D6, D9, D7.

Fine material shall be obtained from optional access channel dredging and/or the designated fine borrow areas. The fine material borrow locations shall follow those defined in the construction drawings. Utilization of other sources of fine fill will require Department approval before dredging commences and may also require freshwater mussel surveys to be conducted prior to submittal for review.

33. Hydraulic carriage water monitoring requirements and effluent limitations shall be met.

Carriage water discharge associated with containment cell effluents shall be monitored for total suspended solids.

Limit for: Met at: Lab Sample frequency

On site sample frequency

200 mg/L TSS Discharge from outfall structure or discharge from containment cell

3x/week, reported weekly in writing (analyze samples within 5 days from collection)

Daily settling test to be conducted when discharging

*Settling test uses 100mL of carriage water in graduated cylinder, acidified to pH of 3.

Monitoring results shall be reported to the Department in writing on a weekly basis. Results should be directed to the attention of Shawn Giblin, Mississippi River Water Quality Specialist.

34. A plan of operation for material placement on islands shall be provided before dredging begins. This plan shall include a description of the specific structures used to regulate or control carriage water discharges to the river, projected discharge rates, outfall locations, hours of operation, containment integrity inspections, and other monitoring and operational procedures necessary to meet the limitations specified in this permit.

35. Samples of carriage water discharge during periods of hydraulic placement shall be representative of the effluent discharged to surface waters. If carriage water is discharged from multiple sites, all sites must be monitored and meet the specified effluent limitations specified.

36. The use of polymers or other chemical aids for solids settling shall require Department approval prior to their use. In order to facilitate this review, information concerning the specific compound(s) to be used, usage rates, method of addition, effective concentration, and appropriate aquatic toxicity information shall be provided. Please allow 10 business days to obtain this approval.

37. Hydraulic placement shall cease immediately if containment is breached or when effluent limits are not being achieved as indicated by high solids settling test results. Any breaches or failures in the containment structures or outfall structures shall be reported to the Department in writing within 24 hours of their discovery.

Wetland Conditions

38. No wetlands may be disturbed beyond the area specifically authorized in this permit.

39. Access through wetlands, including equipment travel, shall be minimized to the extent practicable.

40. All construction waste materials shall be removed from wetlands after construction.

41. Except where permanent wetland fill is authorized, all wetlands shall be restored to pre-existing conditions including the soil profile, elevations, vegetative cover and hydrology.

42. Where permanent fill material is authorized, the project will be constructed in a manner that will maintain wetland hydrology in the remaining wetland complex.

43. Woody debris not used for loafing structures, brush piles, and wood chips shall not be piled or spread in wetlands but must be removed.

Structure Conditions

44. Rock riprap associated with the project must be appropriately sized and must be comprised of clean field stone or quarry stone.

45. Unless otherwise approved by the Department, structures shall be constructed and completed as described in the submitted plans. You shall submit as-built post construction design surveys to the Department for quality assurance.

46. If de-watering becomes necessary for construction, a de-watering plan must be submitted to and approved by the Department in writing before any on-site dewatering may take place.

FINDINGS OF FACT

1. The McGregor District U.S. Fish and Wildlife Service c/o Brandon Jones and the Saint Paul District U.S. Army Corps of Engineers c/o Trevor Cyphers have filed for a permit to place structures and materials on the bed of the Mississippi River - Pool 10, in the City of Prairie du Chien, Crawford County, also described as being in the NW1/4 of the NW1/4 of Section 36, Township 07 North, Range 07 West.

2. The USFWS and USACE are seeking permit coverage for the second phase of the McGregor Lake Habitat Rehabilitation and Enhancement Project (HREP). The McGregor Lake HREP is located in Pool 10 of the Upper Mississippi River and within the Upper Mississippi River National Wildlife and Fish Refuge and includes McGregor Lake, the associated islands along with the channels and backwater complexes between the main channel and east channel. The goal of the project is to protect and improve the floodplain forest habitat of the area through elevation rise resulting in less inundation and providing quality habitat for species that rely on backwater habitats. The project will result in a net increase of wetlands found within the McGregor Lake area. On February 13th, 2020, the Saint Paul District USACE was granted Permit Number IP-WC-2019-03044 for Phase I of the McGregor Lake HREP which authorized up to 70,000 cubic yards of dredged sand to be placed within the habitat feature F14. The Phase II specific features of the project include five (5) floodplain forest features, up to five (5) habitat dredging features, three (3) erosion protection features, one (1) flow modification feature, one (1) rock berm, as well as 35 acres of timber stand improvement. An estimated 495,000 cubic yards of dredged material will be required to accomplish the project goals and construct the specific features. The project will be constructed in a manner that will maintain wetland hydrology throughout the site; no wetlands will be converted into uplands. Post-construction monitoring and adaptive management will be used to identify and address issues with feature performance and habitat response.

3. The McGregor Lake Habitat Rehabilitation and Enhancement Project (HREP) was approved by the River Resources Forum, St. Paul District.

4. The St. Paul District U.S. Army Corps of Engineers has submitted a no-rise certification letter for the complete McGregor Lake HREP project to the Wisconsin DNR indicating that the project, when constructed, shall not cause an increase in flood elevations on the Mississippi River.

5. The McGregor Lake HREP project has conducted pre-project mussel surveys, has completed mussel relocation actions and will follow the conditions of this permit to protect mussel resources. Agency experts find that all threatened & endangered species that would have been impacted by the proposed dredge access to the project site were adequately collected from the impact area (with buffer) and relocated. There should be no impacts to state and federally listed native mussels for the project as proposed. Should the timing, scope or location of the project change please notify the Department for additional guidance.

6. The Department has completed an investigation of the project site and has evaluated the project as described in the application and plans.

7. Mississippi River - Pool 10 is a navigable water (and no bulkhead exists at the project site.)

8. The proposed project, if constructed in accordance with this permit will not adversely affect water quality, will not increase water pollution in surface waters and will not cause environmental pollution as defined in s. 283.01(6m), Wis. Stats.

9. The proposed project will not impact wetlands if constructed in accordance with this permit.

10. The Department of Natural Resources has determined that the agency’s review of the proposed project constitutes an equivalent analysis action under s. NR 150.20(2), Wis. Adm.

Code. The Department has considered the impacts on the human environment, alternatives to the proposed projects and has provided opportunities for public disclosure and comment. The Department has completed all procedural requirements of s. 1.11(2)(c), Wis. Stats., and NR 150, Wis. Adm. Code for this project.

11. The Department of Natural Resources has completed all procedural requirements and the project as permitted will comply with all applicable requirements of sections 30.12(3m), Wisconsin Statutes and Chapters NR 102, 103, and 329 of the Wisconsin Administrative Code.

The applicant was responsible for fulfilling the procedural requirements for publication of notices under s. 30.208(5)(c)1m., Stats., and was responsible for publication of the notice of pending application under s.30.208(3)(a), Stats. or the notice of public informational hearing under s.30.208(3)(c), Stats., or both. S. 30.208(3)(e), Stats., provides that if no public hearing is held, the Department must issue its decision within 30 days of the 30-day public comment period, and if a public hearing is held, the Department must issue its decision within 20 days after the 10-day period for public comment after the public hearing. S. 30.208(5)(bm), Stats., requires the Department to consider the date on which the department publishes a notice on its web site as the date of notice.

12. The structure or deposits will not materially obstruct navigation because the materials will not be placed within the navigational channel.

13. The structure or deposits will not be detrimental to the public interest because the proposed construction methods have been designed to (along with conditions of this permit) minimize impacts to fish and wildlife habitat, water quality, navigation, recreation, and natural scenic beauty.

14. The structure or deposits will not materially reduce the flood flow capacity of a stream if installed according to the terms of this permit.

15. The activity will not cause environmental pollution as defined in s. 299.01(4).

CONCLUSIONS OF LAW

1. The Department has authority under the above indicated Statutes and Administrative Codes, to issue a permit for the construction and maintenance of this project.

NOTICE OF APPEAL RIGHTS

If you believe that you have a right to challenge this decision, you should know that the Wisconsin statutes and administrative rules establish time periods within which requests to review Department decisions shall be filed. For judicial review of a decision pursuant to sections 227.52 and 227.53, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to file your petition with the appropriate circuit court and serve the petition on the Department. Such a petition for judicial review shall name the Department of Natural Resources as the respondent.

To request a contested case hearing of any individual permit decision pursuant to section 30.209, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to serve a petition for hearing on the Secretary of the Department of Natural Resources, P.O. Box 7921, Madison, WI, 53707-7921. The petition shall be in writing, shall be dated and signed by the petitioner, and shall include as an attachment a copy of the decision for which administrative review is sought. If you are not the applicant, you must simultaneously provide a copy of the petition to the applicant. If you wish to request a stay of the project, you must provide information, as outlined below, to show that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment. If you are not the permit applicant, you must provide a copy of the petition to the permit applicant at the same time that you serve the petition on the Department.

The filing of a request for a contested case hearing is not a prerequisite for judicial review and does not extend the 30 day period for filing a petition for judicial review.

A request for contested case hearing must meet the requirements of section 30.209, Wis.

Stats., and sections NR 2.03, 2.05, and 310.18, Wis. Admin. Code, and if the petitioner is not the applicant the petition must include the following information:

1. A description of the objection that is sufficiently specific to allow the department to determine which provisions of this section may be violated if the proposed permit or contract is allowed to proceed.

2. A description of the facts supporting the petition that is sufficiently specific to determine how the petitioner believes the project, as proposed, may result in a violation of Chapter 30, Wis. Stats;.

3. A commitment by the petitioner to appear at the administrative hearing and present information supporting the petitioner’s objection.

If the petition contains a request for a stay of the project, the petition must also include information showing that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment.

Dated at Dodgeville Service Center, Wisconsin on 07/07/2020.

STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES

For the Secretary

By _________________________________ Weston Matthews Water Management Specialist