BCDC_Consistency Notification.pdf

DEPARTMENT OF THE ARMY

SAN FRANCISCO DISTRICT, US ARMY CORPS OF ENGINEERS

450 GOLDEN GATE AVENUE

SAN FRANCISCO CALIFORNIA 94102

January 6, 2020

Mr. Larry Goldzband Executive Director San Francisco Bay Conservation and Development Commission 375 Beale Street, Suite 510 San Francisco, CA 94105

Dear Mr. Goldzband:

The U.S. Army Corps of Engineers (USACE) San Francisco District appreciates that the San Francisco Bay Conservation and Development Commission (BCDC) has conditionally concurred with the determination by USACE that our Operations and Maintenance Dredging Program for 2020-2024 is consistent to the maximum extent practicable with the federal Coastal Zone Management Act, as amended, and the San Francisco Bay Coastal Zone Management Program.

This letter acknowledges receipt of the 2020-2024 Letter of Agreement and enclosed for your records is the BCDC original document, signed by me. However, it is USACE's position that special conditions 11(B), and 11(J) are inapplicable, as confirmed by S.F. Bay Conservation & Dev. Comm'n v. United States Army Corps of Enq'rs, No.

16-cv-05420-RS, 2019 U.S. Dist. LEXIS 192178 (N.D. Cal. Nov. 4, 2019), therefore USACE will not modify its operations to comply with them. USACE will reduce the scope of its program to alternate hopper dredging between Richmond Outer Harbor and Pinole Shoal to accommodate the state agencies' concerns regarding entrainment of longfin smelt.

If you have any further questions, please contact Dr. Tessa Beach, Chief of Environmental Sections, at (415) 503-6713 or Mr. Chris Eng at (415) 503-6868.

Sincerely, \ i< 1 A

74hn D. Cunnigham -tieutenant Colonel, U.S. Army

District Commander and Engineer

San Francisco Bay Conservation and Development Commission 375 Beale Street, Suite 510, San Francisco, California 94105 tel 415 352 3600 fax 888 348 5190

State of California I Gavin Newsom - Governor infobcdc.ca.gov I viww.bcdc.ca.gov

LETTER OF AGREEMENT FOR CONSISTENCY

DETERMINATION NO. C2019.004.OO

Permittees Copy December 13, 2019

United States Army Corps of Engineering San Francisco District 455 Golden Gate Avenue, Fourth Floor San Francisco, California 94902

On December 5, 2019, the San Francisco Bay Conservation and Development Commission, by a vote of 17 affirmative, 0 negative, and 0 abstentions, adopted the resolution pursuant to which this conditional Letter of Agreement was issued.

I. Agreement

A. The San Francisco Bay Conservation and Development Commission concurs with the determination of the US Army Corps of Engineers, San Francisco District (USACE) that, as further conditioned by the Commission herein, the USACE's 2020 through 2024 Maintenance and Operations Program (Program)1 is consistent to the maximum extent practicable with federal Coastal Zone Management Act and the San Francisco Bay Coastal Zone Management Program as follows:

In the Bay and the Suisun Marsh Primary Management Area (Exhibit A):

Dredge a maximum of 950,000 cy of sediment from Oakland Inner and Outer Harbor channels to a depth of -50 feet MLLW, plus two feet over-dredge depth allowance annually for five years and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment at the federally authorized San Francisco deep ocean disposal site (SF-DODS)(Exhibit B);

1 Program means all dredging and disposal activities proposed by the USACE for the 2018 and 2019 operations and maintenance activities. Project means individual dredging episode at a federal navigation channel and its associated disposal or beneficial use of dredged sediment.

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2. Dredge a maximum of 350,000 cy of sediment from Richmond Inner Harbor channel to a depth of -38 feet MLLW, plus two feet over-dredge depth allowance annually for five years and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment at the federally authorized San Francisco deep ocean disposal site (SF-DODS) (Exhibit C);

3. Dredge a maximum of 350,000 cy of sediment from Richmond Outer Harbor channel to a depth of -45 feet MLLW, plus two feet over-dredge depth allowance annually for five years and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized Alcatraz Island (SF-li) and/or San Pablo Bay (SF-ia) disposal sites (Exhibit C);

4. Dredge a maximum of 300,000 cy of sediment from Pinole Shoal channel to a depth of -35 feet MLLW, plus two feet over-dredge depth allowance, including advanced maintenance dredging to a depth of -37 MLLW plus two feet of over dredge depth between station 200+00 and 290+00 and between stations 309+00 and 421~00, annually for five years and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized or San Pablo Bay (SF-b) and/or Alcatraz (SF-il) disposal site (Exhibit D);

5. Dredge a maximum of 200,000 cy of sediment from Suisun Bay channel to a depth of -35 feet MLLW, plus two feet over-dredge depth allowance, including advanced maintenance dredging to a depth of -37 MLLW plus two feet of over dredge depth in the Bulls Head Reach area (between station 62+00 and 88+00), annually for five years and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized Suisun Bay (SF-16) and/or Carquinez Strait (SF-9) (Exhibit E);

6. Dredge a maximum of 300,000 cy of sediment from Redwood City Harbor to a depth of -30 feet MLLW, plus two feet over-dredge depth allowance biannually, beginning in 2021, and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment at SFDODS, or in the Bay at the state and federally authorized Alcatraz Island (SF-il) disposal site (Exhibit F);

7. Dredge a maximum of 16,000 cy of sediment from San Bruno Shoal to a depth of -30 feet MLLW, and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized Alcatraz Island (SF-li) disposal sites (Exhibit F);

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United States Army Corps of Engineers San Francisco District

8. Dredge a maximum of 350,000 cy of sediment from the Petaluma River channel to a depth of -8 feet MLLW, plus two feet over-dredge depth allowance and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment at Schollenberger Park disposal site in the City of Petaluma, Sonoma County (Exhibit G);

9. Dredge a maximum of 250,000 cy of sediment from the Petaluma River Across the Flats channel to a depth: -8 feet MLLW, plus two feet over-dredge depth allowance and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized San Pablo Bay (SF-lU) disposal site (Exhibit G);

10. Dredge a maximum of 55,000 cy of sediment from the upper Napa River channel to a depth of -iS feet MLLW, plus two feet of over dredge depth allowance and a maximum of 13,000 cy of sediment from the lower Napa River channel to a depth of -9 feet MLLW, plus one foot over-dredge depth allowance, and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged at the Irnola or Napa Plant site in the City and County of Napa (Exhibit H);

11. Dredge a maximum of 87,000 cy of sediment from the San Rafael Creek channel to a depth of -6 feet MLLW, plus two feet over-dredge depth allowance and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment at the state and federally authorized San Pablo Bay Disposal Site (SF-10)(Exhibit I);

12. Dredge a maximum of 113,000 cy of sediment from the San Rafael Creek Across the Flats channel to a depth: -8 feet MLLW, plus two feet over-dredge depth allowance and beneficially reuse the dredged sediment at an approved site, or if beneficial reuse is infeasible, dispose of the dredged sediment in the Bay at the state and federally authorized San Pablo Bay (SF-b) disposal site(Exhibit I);

13. Conduct up to five "sea trials" for the federal hopper dredges, Essayons and Yaquina, after dry dock repairs or maintenance activities. Sea trials for the Essayons includes intake of 600,000 gallons of water for ship displacement calibration and dredging 3-5 loads (up to 12,000 cy of sediment) for load calibration, and 1,500 gallons of water and 3-5 loads (up to 4,000 cy of sediment) for the Yaquina per trial episode. The sea trial for either project would occur in Pinole Shoal federal navigation channel in January through March. Place the dredged sediment at the state and federally authorized San Francisco Bar (SF-8) disposal site, unless the sea state is prohibitive. If the sea state is unsafe, place the dredged sediment at the Alcatraz disposal site (SF-li); and

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United States Army Corps of Engineers San Francisco District

14. Conduct annual "knockdown events" of up to five percent of that channel's proposed volume, with individual shoals being no greater than 3,000 cy, unless the USACE agrees to monitor the knockdown event to determine the increase in suspended sediment and turbidity levels from the knockdown event.

B. This agreement is given based on the information submitted by or on behalf of the USACE in its consistency determination dated June 18, 2019 and the addendum submitted on August 1, 2019, including all accompanying and subsequent correspondence and exhibits. As described, this agreement expires on December 31, 2024.

II. Special Conditions

If the USACE does not agree to comply with the following conditions or fails to incorporate them into its Program, the USACE shall notify the Commission immediately of its refusal to agree or to incorporate any of the conditions into the Program, and this conditional concurrence shall be treated as an objection to the USACE's determination that the Program is consistent to the maximum extent practicable with the enforceable Bay Plan policies applicable to such conditions. The USACE shall also immediately notify the Commission if the USACE determines that it will go forward with any project pursuant to the Program despite the Commission's objection.

A. Limits on Dredging. This consistency determination authorizes maintenance dredging only within areas as shown on Exhibits B through Ito the project depths for each channel as listed in the authorization section above with a total dredge volume of

14.395 million cubic yards (Mcy), of which 12.145 Mcy would be dredged from within the Bay. The total volume proposed to be dredged in subsequent years includes: 1.562 Mcy from deep draft channels in 2020, 2022, and 2024; and 1.862 Mcy from deep draft channels in 2021 and 2023; with a total of 884,000 cy of sediment dredged from three shallow draft channels and the San Bruno Shoal, should they be authorized and funded.

The three shallow draft channels would likely be dredged in different years. No dredging in other areas or additional volume is authorized.

B. Limits on Disposal. The USACE shall reduce its annual in -Bay disposal volume to a maximum of twenty percent of the total volume of sediment dredged each year in its proposed for its dredging Program. Further, to ensure consistency with the Bay Plan's enforceable policies on Dredging, including but not limited to the policy to maximize the use of dredged sediment as a resource, as discussed further below in Section III - A.1 (Findings and Declarations, Consistency of Dredging Activities with the Amended San Francisco Bay Coastal Zone Management Program, LTMS Management Plan and Dredging Policies, the USACE shall take a minimum of forty percent of the total volume of sediment in its Program's to beneficial reuse sites annually, and to the extent practicable, shall take additional dredged sediment to designated beneficial reuse sites through further reduction of sediment proposed for ocean disposal.

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United States Army Corps of Engineers San Francisco District

In -Bay disposal of dredged sediments shall not exceed the monthly or annual disposal site targets set forth in the Commission's regulations and the LTMS Management Plan.

The USACE shall limit its Program's in -Bay disposal volumes to 20% of the total volume proposed, and in accordance with direction from the Inter-Agency Dredged Material Management Office (DMMO) to ensure there is adequate total in -Bay disposal volume to accommodate other dredgers, particularly the small dredging community. In the event that annual or monthly in -Bay disposal site limits are reached, the USACE shall redirect disposal at the direction of the DMMO, to a site that has not approached its limits. If, in any instance, the USACE determines that the LTMS disposal targets (either individual in -Bay sites or total) would be exceeded, at the next Commission meeting a USACE representative shall present to the Commission the purpose and need of exceeding those limits.

C. Annual Schedule. No later than November 30th of each year, the USACE shall provide the DMMO agencies a schedule of the projects confirmed for dredging in the following calendar year. An updated schedule shall be provided to the Commission staff quarterly if changes are made to the schedule that affects execution of a project(s). If a project receives additional funding after November 30th of any year that would impact the USACE program, the USACE shall provide a project description and schedule to the DMMO agencies within two weeks of receiving funding.

D. Water Quality Approval. By January 31, 2020, and prior to the commencement of any dredging episode authorized herein, the USACE shall submit to the Executive Director a water quality certification, waste discharge requirements, or any other required approvals from the California Regional Water Quality Control Board, San Francisco Bay Region (Water Board). Failure to obtain and comply with such certification prior to the commencement of any dredging episode shall terminate the Commission's concurrence for that episode. The Executive Director may, upon review of the Water Board's approval, either: (1) approve the dredging episode consistent with the Water Board's authorization; or (2) amend this authorization, as necessary, to ensure consistency to the maximum extent practicable with water quality-related policies of the Commission's federally-approved Coastal Zone Management Program. If the Executive Director amends this authorization pursuant to Special Condition ll -D, unless the USACE agrees to the authorization in the manner specified by the Executive Director, this consistency determination shall become null and void for that episode.

E. Sediment Quality. Sediment to be dredged and disposed/beneficially reused shall be tested to ensure that the sediment is physically, chemically and biologically suitable for the proposed placement site. The sediment testing program shall be in accordance with the Inland Testing Manual or the Ocean Testing Manual, as modified for the San

LETTER OF AGREEMENT FOR CONSISTENCY

DETERMINATION NO. C2019.004.OO

United States Army Corps of Engineers San Francisco District

December 13, 2019

Francisco Bay Region. The Sampling Analysis Plans shall be consistent with the protocols, advice and decisions of the DMMO, and should be submitted a minimum of one week before the DMMO meeting occurs. Once testing has occurred, the Sampling Analysis Results shall be submitted in report form to the Commission staff and the DMMO for review and decision on the suitability of the sediment for the proposed placement site.

The USACE shall abide by the decisions of the DMMO.

Overflow During Hopper Dredging. Return water overflow from hopper-type hydraulic dredges shall be limited to no longer than 15 minutes at the dredge site for each hopper load except in channels where the shoaled material contains greater than 80 percent sand. There is no overflow restriction if the dredged material is greater than 80 percent sand.

G. Dredging and Disposal Activity

1. Episode Approval, Disposal Report and Notice. At least 30 days before the commencement of any dredging, disposal and/or placement episode authorized herein, the USACE shall submit to the Commission's Executive Director for review and approval:

a. A bathymetric survey depicting the location of all areas authorized to be dredged, the proposed depth including over-dredge depth based on MLLW, the volume of sediment proposed to be dredged, the results of sediment test analysis, and the proposed placement site, and the approximate date of project commencement. The bathymetric survey data presented shall be collected not more than 90 days prior to proposed start of dredging. The USACE shall provide an additional survey approximately 15 days prior to start of dredging to further refine the dredge and disposal volume. At least two (2) weeks prior to any dredging episode, the USACE shall notify the Commission staff of the commencement date by telephone, email or in writing, if the volume of sediment proposed for dredging, placement site, or date of commencement changes, updated information shall be provided as soon as it is available.

b. A written statement to the Executive Director that contains: (1) the proposed disposal or placement site and quantity of sediment to be disposed or placed, and dates within which the disposal/placement episode is proposed; (2) if applicable, a discussion as to how the volume proposed for disposal is consistent with in -Bay disposal site limits and/or disposal site allocations; (3) the results of chemical and biological testing of sediment proposed for disposal; and (4) an individual alternatives analysis for that channel or integrated alternative disposal site analysis for the annual program that provides the basis for the feasibility determination of beneficial reuse of dredged sediment, upland placement or ocean disposal at SF-DODS being infeasible.

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United States Army Corps of Engineers San Francisco District

c. If advanced maintenance dredging is necessary, the USACE shall provide: (1) the advanced maintenance footprint; (2) any test results characterizing the sediment;

(3) proposed depth; (4) volume; (5) disposal or beneficial reuse location; (6) schedule for the project; and (7) rationale for the purpose of and need for the advance maintenance to the Commission staff for review and approval.

2. Authorization of In -Bay Disposal. The authorization for the proposed in -Bay disposal shall become effective only if the Executive Director: (1) informs the USACE in an episode approval letter or email that the episode is consistent with the authorization provided herein, beneficial reuse or alternative disposal options are infeasible, the volume proposed for disposal is consistent with the disposal site limits, and the sediment is suitable for in -Bay disposal, beneficial reuse or ocean disposal; or (2) does not respond to the USACE's episode approval request within 30 days of its receipt. If the Executive Director determines that: (a) ocean disposal, upland disposal, or beneficial reuse of the material is feasible; (b) the sediment proposed for disposal is unsuitable for the Bay; or (c) the proposed disposal is inconsistent with in-Bay disposal site limits, the Commission's concurrence for in -Bay disposal for that episode shall be terminated. The USACE shall adhere to any special conditions contained in the episode approval letter, beyond those contained in this consistency determination concurrence.

3. Post-Dredging Requirements. For all projects completed in the previous year, the USACE shall submit a bathymetric map showing the actual area(s) and depths dredged including over-dredge depth based on MLLW, any dredging that occurred outside the area or below the depths authorized herein, and a written statement indicating the total volume of sediment dredged and placed/disposed, the placement or disposal locations and the volume of sediment placed at each site of each dredging episode or advanced maintenance event, authorized by this agreement, by January 315t of each year, as well as a summary of work completed by December 31st for incomplete projects. For projects completed after December 31st of any year, the USACE shall provide the same information listed above within 60 days of episode completion.

Biological Resource Protection. Dredging, and dredged sediment disposal have impacts to the biological resources of the Bay. Therefore, the USACE shall undertake the following avoidance, minimization and mitigation measures:

1. Seasonal Limitations. To reduce impacts to Bay species whose population are in decline, and specifically those that federal and state governments have listed as candidate, threatened or endangered, as well as those that use the Bay as spawning grounds, the USACE shall confine dredging and disposal operations to the work

LETTER OF AGREEMENT FOR CONSISTENCY Page8 DETERMINATION NO. C2019.004.O0 December 13, 2019 United States Army Corps of Engineers San Francisco District windows consistent with Tables F-i and F-2 of Appendix F, "In -Bay Disposal and Dredging" and Figures 3.2 and 3.3 of the Long-Term Management Strategy Management Plan (2001) as amended by the U.S. Fish and Wildlife Service (USFWS) on May 28, 2004 and NOAA's National Marine Fisheries Service (NMFS) amended LTMS Programmatic Biological Opinion dated July 2015. No work inconsistent with the time and location limits contained in these tables may be conducted without the written approval of the Executive Director. Such approval may only be issued after the Executive Director has sought the advice of the appropriate resource agencies and determined that dredging and disposal outside of the work window would be consistent with the Commission's Coastal Zone Management Program.

In the event that the USACE dredges outside of the salmon work window anywhere within San Francisco Bay, the USACE shall place the sediment dredged during that time at a designated beneficial reuse site that will benefit fish habitat, consistent with the NMFS 2015 amended LTMS Programmatic Biological Opinion. If it is infeasible to do so during that dredging episode, the USACE shall place an equivalent volume of dredged sediment at a beneficial reuse site from a project conducted during the work window the following dredge season.

2. Longfin and Delta Smelt. Both the longfin smelt and Delta smelt populations are in extreme decline, as noted by the listing of both species. Longfin smelt is listed as threatened by the California Department of Fish and Wildlife (CDFW) and is a candidate species for listing by the USFWS. Delta smelt is listed as endangered by CDFW and threatened by USFWS.

a. Reduced Use of Hydraulic Dredge. To ensure consistency with the Bay Plan's enforceable policies on Fish, Aquatic Organisms and Wildlife, including but not limited to the policies to protect native fish species, as discussed further below in Section III - A.2 (Findings and Declarations, Consistency of Dredging Activities with the Amended San Francisco Bay Coastal Zone Management Program, Natural Resources), the USACE shall reduce impacts from entrainment to these and other fish species by reducing the use of hydraulic hopper dredge to a maximum of one in -Bay federal channel located within San Francisco Bay annually (either Richmond Outer Harbor or Pinole Shoal). Other channels shall be dredged using mechanical equipment.

b. Hydraulic Dredge Minimization Measures. To reduce entrainment of longfin and Delta smelt when a hydraulic dredge is in use, the USACE shall implement the following minimization measures when using a hydraulic dredge:

(1) No dredging would occur in water ranging from 0 to 5 parts per thousand salinity between December 1st and June 30th of any year;

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United States Army Corps of Engineers San Francisco District

(2) The USACE shall designate a qualified biologist to provide a worker education and training program regarding special status fish species that could be adversely impacted by dredging. The program would include a presentation to all workers on biology, general behavior, distribution and habitat needs, sensitivity to human activities, legal protection status, and project-specific protective measures for all special status species. The training program shall be conducted prior to the use of a hydraulic dredge in San Francisco Bay;

(3) At the beginning and end of each hopper load, pump priming, drag head clearing, and suction of water would be conducted within three feet of the seafloor;

(4) Hydraulic drag head suction pumps would be turned off when raising and lowering the drag arms from the seafloor;

(5) Maintaining contact of drag head, cutterheads, and pipeline intakes with the seafloor during suction dredging;

(6) Keeping the drag head water intake doors closed to the maximum extent feasible in locations most vulnerable to entraining Iongfin and Delta smelt. In circumstances when the doors need to be opened to alleviate clogging, the doors would be opened incrementally;

(7) In the event Suisun Channel is dredged using hydraulic equipment, dredge between August 1st and September 30th of any year, to avoid impacts to spawning adult longfin and Delta smelt;

(8) Conduct hydraulic dredging in San Pablo Bay (Pinole Shoal) and Central Bay (i.e., Richmond Outer Harbor) between August 15t and November 30th, to the extent feasible, to avoid impacts to young-of-the-year and spawning adult longfin smelt; and

(9) Notify the Commission staff in writing immediately if it determines that it is not in compliance with any of these measures, including but not limited to any actual or anticipated failure to implement minimization measures.

c. Entrainment Monitoring for Hydraulic Dredges. To increase the accuracy of the existing estimated entrainment rates for longfin and Delta smelt, the USACE shall:

(1) By March 31, 2020, USACE shall submit a five-year entrainment monitoring plan, acceptable to the Executive Director, for collecting data to increase the accuracy of existing entrainment rate estimates for delta smelt, longfin smelt, and other special status fish species in hydraulic hopper dredges during maintenance dredging in San Francisco Bay.

Annual monitoring reports are due by January 31st of the year following dredging activity monitored. At a minimum, the plan shall include the following elements:

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United States Army Corps of Engineers San Francisco District

a. On -board monitoring during active dredging;

b. Sampling during all phases of the dredging cycle;

c. Sampling both drag-arms to capture a greater percentage of the pump volume during active dredging;

d. Sampling associated with flood/ebb tides and spring/neaptides;

e. Visual monitoring of vessel hold for fish that are not captured by sampling screens during active dredging;

Presence/absence monitoring in the immediate vicinity of the dredge active to determine effectiveness, if feasible; and

g. Procedures for evaluating the effectiveness of the avoidance, minimization, and mitigation measures as described in Special Condition ll-1.2.b.

By March 31 of years 2021 through 2024, USACE shall submit an annual update to the plan (or an acceptable rationale justifying that no update is necessary or proposed).

(2) If hydraulic dredging occurs in the Petaluma River or Napa River Channel between October 1st and June 30th, monitor water temperatures in the morning prior to the start of work at 3 feet above the river bottom and at the river bottom in the dredging footprint, at 541 meters (1,775 feet) upstream and 541 meters downstream from the dredging activity that day. The temperature readings shall be logged and provided to Commission staff via email each Friday by 5 pm PST of any week that work is occurring to assist in assessing mitigation credit requirements.

(3) Implement the entrainment monitoring plan when using a hydraulic dredge in San Francisco Bay, and provide a report within 6 months of completion of each monitoring event.

In the event that the USACE identifies a proposal that is more beneficial to species of concern, it may propose it to the Water Board and Commission staff for review and approval by February 28th of the year in which its implementation is proposed.

d. Compensatory Mitigation Measures

(1) Use of Hydraulic Dredges. Compensatory mitigation is necessary to offset the impacts of hydraulic dredging. When the USACE uses a hydraulic dredge in Pinole Shoal, Richmond Outer Harbor, or other federal channel, and in the event sea trials occur, the USACE shall purchase at a minimum of 0. 19 and/or

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United States Army Corps of Engineers San Francisco District

0.34 acres of mitigation credit, respectively2, at Liberty Island Conservation Bank based on a conservative estimate to mitigate for potential impacts to longfin and Delta smelt. If the volume of sediment actually dredged is beyond the estimated amount used for the migration credit calculations, the USACE shall revise the calculations and purchase the appropriate amount of credit for the volume of sediment actually dredged.

If another CDFW and USFWS-approved conservation bank opens, which provides habitat benefitting listed smelt species, the USACE may purchase credits at that bank if it is located closer to the dredge site than Liberty Island. If Pinole Shoal is dredged with a hydraulic dredge the USACE shall purchase no less than 0.19-acres of mitigation credit per year and if Richmond Outer Harbor is dredged with a hydraulic dredge, the USACE shall purchase no less than 0.34 acres of mitigation credit per year. The USACE shall review the volume of water actually pumped through the dredge, and use the formula described in the Natural Resources section of the findings to determine if purchase of additional credits are necessary. When sea trials for hopper dredges occur, additional credits shall be calculated and purchased in that same year.

In finalizing the annual compensatory mitigation purchases, the USACE shall coordinate with the Commission staff, the Water Board, USFWS and CDFW, to reach agreement on the additional compensatory mitigation required for purchase, and provide documentation that the purchase has occurred to the Commission staff by March 30th of the year following the dredging activity.

(2) If Petaluma River Channel, Napa River Channel, or San Rafael Creek, and Across the Flats is hydraulically dredged when conditions are conducive to the presence of longfin or Delta smelt (water temperature less than 22 degrees Celsius), the USACE shall use the temperature measurements from Special Condition II--l.2.c(2) to determine the number of days that dredging occurred when conditions were appropriate for the presence of longfin or Delta smelt. Using the volume of water pumped during dredging, calculate and purchase mitigation credit commensurate with the volume of sediment dredged while those conditions were present as with the hydraulic hopper dredge.

2 After the Commission approved the Staff Recommendation, the USACE identified an error in the mitigation credit described herein. Commission staff reviewed the information, agrees that a correction was warranted and made the correction prior to issuing this Letter of Agreement.

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United States Army Corps of Engineers San Francisco District

If a mitigation option that would be of greater benefit to smelt becomes available, the USACE shall work with the Commission staff in consultation with the CDFW and USFWS to determine the type and amount of mitigation appropriate to compensate for the potential impacts to smelt from hydraulic dredging in San Bruno Shoal, the Petaluma River Channel, Napa River Channel, or San Rafael Creek, and Across the Flats channels, subject to agreement by the Executive Director.

Herring. Pacific herring is an important forage and commercial fishery fish that spawns on hard surfaces, aquatic plants, and seaweed in San Francisco Bay. To protect this species' spawning habitat, the USACE shall implement the following measures when dredging between November 30th and March.155t of any year. By November 15th of each year, the USACE shall notify the Commission staff, the Water Board and CDFW if dredging is proposed between November 30th and March 15st of any year within a herring spawning area in San Francisco Bay. If dredging would occur in potential spawning habitat between November 30th and March 15th of any year, the USACE shall implement the following measures:

A qualified and trained herring observer shall be present during all dredging or in -water work (day and night) and observing shall be his/her sole duty. Training includes, at a minimum, annual attendance at a CDFW administered herring training. The USACE shall provide a copy of observers' qualifications to the Commission, the Water Board and the CDFW not later than November 20th in years that dredging would occur after the herring closure;

b. The observer shall monitor for herring spawn from an area that allows a full range of view of the 500-meter buffer zone. Observations may be conducted from the dredge, shore, or by a separate vessel;

c. The observer shall conduct a shoreline survey within the 500-meter buffer zone at least one hour prior to the start of dredging when there is a lag time of eight hours or more between dredging activities and/or following dredging at night;

d. All in -water work shall stop immediately and Commission staff and CDFW shall be notified if spawning Pacific herring are detected within 500 meters of the dredging site. If spawning occurs within the 500-meter buffer, work may not continue until spawning has ended and herring embryos have hatched (14-21 days). Dredging can restart with approval from CDFW and notification to the Commission staff;

e. The observer shall keep a daily log of observations, which shall be submitted to

Commission staff and the CDFW on a weekly basis by 5:00 pm on Fridays; and

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United States Army Corps of Engineers San Francisco District

f. To further protect herring during their spawning season, if dredging occurs between December 1st and March 15th of any year, the Oakland Harbor and Richmond Inner Harbor channels shall be dredged beginning in the outer reaches to the inner reaches.

4. Eelgrass. Eelgrass is a known productive aquatic plant that provides significant habitat value for certain Bay species. When a dredging footprint is within 45 meters of an eelgrass bed, the USACE shall conduct pre-dredge and post-dredge eelgrass surveys to determine whether the project is impacting eelgrass beds. The USACE shall provide a copy of the pre-dredge eelgrass survey 30 days prior to project commencement of dredging. Once dredging is complete, the USACE shall provide a post-dredge eelgrass survey within 45 days of project completion and provide them to the Commission staff, the Water Board, NMFS, and CDFW for review and consideration. If a dredging project is completed during the eelgrass dormancy period, the USACE shall perform the post-dredge eelgrass survey in the spring, and provide the post-dredge eelgrass survey within 45 days of completion, in compliance with the LTMS Programmatic Essential Fish Habitat Consultation (2011).

5. Fish Habitat. In order to reduce impacts to habitat from the dredging and disposal projects, the USACE shall comply with the Conservation Measures set forth in the June 9, 2011, Programmatic Essential Fish Habitat (EFH) Consultation Agreement between USACE, the EPA, and NOAA Fisheries.

6. Hazardous Materials and Fuels. The USACE shall immediately stop/repair and clean up any fuel or hazardous waste leaks or spills from dredging or disposal activities at the time of occurrence. The USACE shall properly contain hazardous products and dispose of any unused or leftover hazardous products off-site.

7. Take of Listed Species. This consistency determination agreement does not allow for the take, including incidental take, of any special status species. The USACE is required, as prescribed in the State and Federal Endangered Species Acts, to consult with or obtain appropriate take authorization from the appropriate agencies prior to undertaking dredging activities in San Francisco Bay which may affect any federally or state listed species and is not in compliance with the LTMS Programmatic Biological Opinions, or individual biological opinions currently in effect.

If the USACE initiates consultation with one or more resource agencies, it shall provide a copy of the amended or new biological opinion to the Commission staff for consideration and potential amendment to this Letter of Agreement as required by the Commission. The USACE shall use the appropriate protocols, as approved by the CDFW, NMFS, and/or USFWS, to ensure that project activities do not adversely affect rare, candidate, threatened and endangered species, as they are protected natural resources of San Francisco Bay and its tributaries.

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United States Army Corps of Engineers San Francisco District

Funding Request. The USACE shall request funds annually to: (1) use a mechanical dredge in the deferred channel (i.e., Pinole Shoal or Richmond Outer Harbor channel) to maintain safe navigation and protect listed species as described in Special Condition ll-l.2.b; (2) to beneficially use a minimum of 40% of the dredged sediment each year or over the five-year period as required in Special Condition Il-B; and (3) report the outcome of such request to the Commission at the appropriate time in the federal budget cycle.

K. Management and Monitoring of In -Bay Disposal of Dredged Material. The USACE shall maintain administrative controls on disposal volumes at the in -Bay disposal sites to ensure that the site specific and LTMS target volumes are not exceeded. The USACE shall manage overall disposal volumes and disposal locations within each site to prevent build-up of dredged materials at each of the sites.

1. The USACE shall continue bathymetric monitoring of the in -Bay disposal sites, monthly at SF-il, quarterly at SF-9, SF-lU, and SF-16. The USACE shall provide these condition surveys within 60 days of their completion to the Commission staff; and

2. No later than July 1st of each year, the USACE shall provide to the Commission an annual report acceptable to the Executive Director, analyzing the status of the mounding at the Alcatraz disposal site. This report shall include:

a. A description of results of the previous year's bathymetric surveys and a description of the trends in mound shape and size;

b. An estimate of the annual net change in volume of the mound overall, and at depths above -60, -50, -40, and -30 feet MLLW;

c. An estimate of the annual volume of dredged material disposal at the site;

d. An analysis of the relationship between disposal volumes, site management practices, and net change in mound volume;

e. Assessment of whether management practices are achieving satisfactory results;

and

Recommendations for future site management practices, as informed by the analysis and assessment of items d and e, above.

L. Observation of Dredging and Disposal Operations. The USACE shall allow the Commission staff and representatives of other state or federal agencies to come aboard the dredge or barge associated with any dredging, knockdown or disposal episode and observe the operation(s) to ensure that these activities are consistent with pre-dredging reports required herein and other terms and conditions of this permit. Further, the

Commission reserves the right to have post-dredging reports inspected by a reliable third party familiar with bathymetric mapping in order to verify the contents of these reports.

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United States Army Corps of Engineers San Francisco District

M. Long-Term Management Strategy Program. If, at any time during the effective life of this agreement, the Commission's laws, Bay Plan policies, or regulations are changed and are in effect regarding dredging, dredged material disposal, and beneficial reuse consistent with the multi -agency Long-Term Management Strategy for Placement of Dredged Material in the Bay Area (LTMS) Program, this agreement shall become null and void unless the USACE agrees to amend its consistency determination, and agrees to new conditions to meet the new laws, policies, or regulations in a manner specified by or on behalf of the Commission, if appropriate.

Ill. Findings and Declarations

This authorization is given on the basis of the Commissions findings and declarations that the work authorized as conditioned herein, is consistent to the maximum extent practicable with the Commission's federally-approved Amended Coastal Zone Management Program for San Francisco Bay, including the McAteer-Petris Act, the Suisun Marsh Preservation Act, and the San Francisco Bay Plan, and Suisun Marsh Protection Plan, and the Commission's regulations, for the following reasons:

A. Consistency of the Dredging Activities with the Amended San Francisco Bay Coastal Zone Management Program. Section 66663 of the McAteer-Petris Act states, "the Legislature hereby finds and declares that because of the shallowness and high sedimentation rate of San Francisco Bay, dredging is essential to establish and maintain navigational channels for maritime commerce, which contributes substantially to the local, regional and state economies, as well as for military navigation, flood control, recreational boating and other public purposes." It is USACE's primary mission to maintain safe navigation of its channels, and maintenance dredging of the federal deep -draft navigation channels is vital to ensuring safe and efficient movement of good to and from Bay Area ports and harbors.

The USACE maintains seven federal deep water navigation channels, and seven shallow draft channels in San Francisco Bay, and one deep water channel at the entrance to the Bay to support safe waterborne commerce, transportation, military and recreation activities. Consistency Determination No. C2019.004.00 includes maintenance dredging of thirteen channels over five years within the Commission's Coastal Zone Management Program Area, or projects that have the potential to impact the Coastal Zone, including:

the Oakland Harbor, Richmond Inner Harbor, Richmond Outer Harbor, Pinole Shoal, Suisun Bay, Redwood City Harbor, Napa River (upper and lower), Petaluma River, and Petaluma Across the Flats, San Rafael Creek and San Rafael Across the Flats channels, and one channel outside the Commission's jurisdiction, the Main Ship channel. The maximum volume that would be dredged from the in -Bay channels over five years is

12.145 Mcy, with a maximum volume in any year if all channels were dredged of 2.746 Mcy. However, it is unlikely that all proposed channels would be dredged in any one year due to limited funding that the USACE receives each year. The more likely

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United States Army Corps of Engineers San Francisco District maximum volume is 2.462 Mcy, in the event that all deep water channels were dredged in the same year as the Petaluma River and Across the Flats were dredged. As proposed, the dredged sediment will be disposed of at one of four in -Bay disposal sites, at the San Francisco Deep Ocean Disposal Site (SFDODS), the San Francisco Bar disposal site (SF-8) a nearshore disposal site, or beneficially reused at an approved beneficial site, or placed at an approved upland disposal site. The authorization section describes the projects as going to beneficial reuse sites, unless infeasible and then provides the aqtlatic disposal site. This, along with Special Condition ll-G, requires the USACE to provide additional information regarding the actual volume proposed for dredging and a feasibility analysis in the year the channels would be dredged.

1. LTMS Management Plan and Dredging Policies. The Legislature amended the McAteer Petris Act Sections 66663 through 66666 in response to, and Bay Plan policies and Commission regulations incorporate, the LTMS Management Plan's goals and measures. The LTMS program provides for economically and environmentally sound dredging and programmatic efficiencies to the regulatory process, creating more certainty for the dredging, resource and regulatory communities. All maintenance dredging projects are coordinated and managed through the LTMS program.

The Bay Plan Dredging Policy No. 1 states, in part, that "[d]redging and dredged material disposal should be conducted in an environmentally and economically sound manner. Dredgers should reduce disposal in the Bay over time to achieve the LTMS goal of limiting in -Bay disposal volumes to a maximum of 1.0 million cubic yards per year...." The policy includes a 250,000 cy "contingency volume" for unforeseen events, and also describes a regulatory disposal volume allocation strategy if the "voluntary targets" are exceeded.

The Bay Plan Dredging Policy No. 2 states, in part, that "[d]redging should be authorized when the Commission can find: (a) the applicant has demonstrated that the dredging is needed to serve a water-oriented use or other important public purpose; (b) the materials to be dredged meet the water quality requirements of the San Francisco Bay Regional Water Quality Control Board; (c) important fisheries and Bay natural resources would be protected through seasonal restrictions established by the California Department of Fish and Game [Wildlife], the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service, or through other appropriate measures; (d) the siting and design of the project will result in the minimum dredging volume necessary for the project; and (e) the materials would be disposed of in accordance with Policy 3."

The Bay Plan Dredging Policy No. 3 states in part, that "[d]redged materials should, if feasible, be reused or disposed outside the Commission's Bay and certain waterways jurisdictions. Except when reused in an approved fill project, dredged material should not be disposed of in the Commission's Bay and certain waterways

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United States Army Corps of Engineers San Francisco District jurisdiction unless disposal outside these areas is infeasible and the Commission finds: (a) the volume to be disposed is consistent with applicable dredger disposal allocations and disposal site limits adopted by the Commission by regulation; (b) disposal would be at a site designated by the Commission; (c) the quality of the material disposed of is consistent with the advice of the San Francisco Bay Regional Water Quality Control Board and the interagency Dredged Material Management Office (DMMO); and (d) the period of disposal is consistent with the advice of the California Department of Fish and [Wildlife], the U.S. Fish and Wildlife Service and the National Marine Fisheries Service."

Bay Plan Policy 4 states, "if an applicant proposes to dispose dredged material in tidal areas of the Bay that exceeds either disposal site limits or any disposal allocation that the Commission has adopted by regulation, the applicant must demonstrate that the potential for adverse environmental impact is insignificant and that non -tidal and ocean disposal is infeasible because there are no alternative sites available or likely to be available in a reasonable period, or because the cost of disposal at alternate sites is prohibitive. In making its decision whether to authorize such in-bay disposal, the Commission should confer with the LTMS agencies and consider the factors listed in Policy 1."

Bay Plan Dredging Policy 5 states, in part, that "[tb ensure adequate capacity for necessary Bay dredging projects and to protect Bay natural resources, acceptable non -tidal disposal sites should be secured, and the deep ocean disposal site should be maintained. Further, dredging projects should maximize use of dredged material as a resource consistent with protecting and enhancing Bay natural resources, such as creating, enhancing, or restoring tidal and managed wetlands, creating and maintaining levees and dikes, providing cover and sealing material for sanitary landfills, and filling at approved construction sites."

The Bay Plan Dredging Policy No. 6 states, in part, that "[d]redged materials disposed in the Bay and certain waterways should be carefully managed to ensure that the specific location, volumes, physical nature of the material, and timing of disposal do not create navigational hazards, adversely affect Bay sedimentation, currents or natural resources, or foreclose the use of the site for projects critical to the economy of the Bay Area."

Lastly, Dredging Policy 12 directs the Commission to continue to participate in the LTMS, the Dredged Material Management Office, and other initiatives conducting research on Bay sediment movement, the effects of dredging and disposal on Bay natural resources, alternatives to Bay aquatic disposal, and funding additional costs of transporting dredged materials to non -tidal and ocean disposal sites.

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United States Army Corps of Engineers San Francisco District

In -Bay Disposal, Ocean Disposal…