PORTLAND DISTRICT

Endangered Species Act – Section 7 Programmatic Consultation Conference and Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for Revisions to Standard Local Operating Procedures for Endangered Species to Administer Stream Restoration and Fish Passage Improvement Activities Authorized or Carried Out by the U.S. Army Corps of Engineers in the Oregon (SLOPES V Restoration)

 

NMFS Consultation No.: NWR-2013-9717

 

Action Agency:

U.S. Army Corps of Engineers, Portland District, Operations and Regulatory Branches

 

Affected species and determinations:

ESA-Listed Species	ESA Status	Is the action likely to adversely affect this species or its critical habitat?	Is the action likely to jeopardize this species?
Lower Columbia River Chinook salmon	T	yes	no
Upper Willamette River Chinook salmon	T	yes	no
Upper Columbia River spring-run Chinook salmon	E	yes	no
Snake River spring/summer run Chinook salmon	T	yes	no
Snake River fall-run Chinook salmon	T	yes	no
Columbia River chum salmon	T	yes	no
Lower Columbia River coho salmon	T	yes	no
Oregon Coast coho salmon	T	yes	no
Southern Oregon/Northern California coasts coho salmon	T	yes	no
Snake River sockeye salmon	E	yes	no
Lower Columbia River steelhead	T	yes	no
Upper Willamette River steelhead	T	yes	no
Middle Columbia River steelhead	T	yes	no
Upper Columbia River steelhead	T	yes	no
Snake River Basin steelhead	T	yes	no
Southern green sturgeon	T	no	no
Eulachon	T	yes	no
Southern resident killer whale	T	no	no
Steller sea lion	T	no	no

*Critical habitat has been proposed for LCR coho salmon.

 

Fishery Management Plan that describes EFH in the Action Area	Would the action adversely affect EFH?	Are EFH conservation recommendations provided?
Coastal Pelagic Species	yes	yes
Pacific Coast Groundfish	yes	yes
Pacific Coast Salmon	yes	yes

 

 

Consultation conducted By: National Marine Fisheries Service, Northwest Region

Issued by: William W. Stelle, Jr.

Regional Administrator

Date Issued: March 19, 2013

Endangered Species Act - Section 7

Formal Programmatic Opinion, Letter of Concurrence

and

Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation

Revisions to Standard Local Operating Procedures for Endangered Species to

Administer Actions Authorized or Carried Out by the U.S. Army Corps of Engineers in Oregon

(SLOPES IV In-water Over-water Structures (click for PDF version)

 

NMFS Consultation Number:             2011/05585

 

Federal Action Agency:                      Army Corps of Engineers

                                                            Portland District, Operations and Regulatory Branches

 

Date Issued:                                        April 5, 2012

Affected Species and Determinations

ESA-Listed Species	ESA Status	Is the action likely to adversely affect this species or it critical habitat?	Is this Action likely to jeopardize this species?	Is this Action likely to destroy or adversely modify critical habitat for this species?
Lower Columbia River Chinook salmon	T	Yes	No	No
Upper Willamette River Chinook salmon	T	Yes	No	No
Upper Columbia River spring-run Chinook salmon	E	Yes	No	No
Snake River spring/summer run Chinook salmon	T	Yes	No	No
Snake River fall-run Chinook salmon	T	Yes	No	No
Columbia River chum salmon	T	Yes	No	No
Lower Columbia River coho salmon	T	Yes	No	N/A
Oregon Coast coho salmon	T	Yes	No	No
Southern Oregon/Northern California coasts coho salmon	T	Yes	No	No
Snake River sockeye salmon	E	Yes	No	No
Lower Columbia River steelhead	T	Yes	No	No
Upper Willamette River steelhead	T	Yes	No	No
Middle Columbia River steelhead	T	Yes	No	No
Upper Columbia River steelhead	T	Yes	No	No
Snake River Basin steelhead	T	Yes	No	No
Southern green sturgeon	T	Yes	No	No
Eulachon	T	Yes	No	No
Steller sea lion	T	No	No	N/A

Fishery Management Plan that Describes EFH in the Action Area	Would the action adversely Affect EFH?	Are EFH conservation Recommendation provided?
Coastal Pelagic Species	Yes	Yes
Pacific Coast Groundfish	Yes	Yes
Pacific Coast Salmon	Yes	Yes

Excerpt from SLOPES IV In-water Over-water Structures General Construction April 5, 2012

1.3.1.2 General Construction

11. Pollution and erosion control. Any action that will require earthwork and may increase soil erosion and cause runoff with visible sediment into surface water, or that will require the use of materials that are hazardous or toxic to aquatic life (such as motor fuel, oil, or drilling fluid), must have a pollution and erosion control plan that is developed and carried out by the applicant, and commensurate with the scale of the action.

a.   The plan must include practices to minimize erosion and sedimentation associated with all aspects of the project (e.g., staging areas, stockpiles, grading); to prevent construction debris from dropping or otherwise entering any stream or waterbody; and to prevent and control hazardous material spills.

b.   During construction, erosion controls and streams must be monitored and maintained daily during the rainy season and weekly during the dry season as necessary to ensure controls are properly functioning.

c.   If monitoring shows that the erosion controls are ineffective at preventing visible sediment discharge, the project must stop to evaluate erosion control measures. Repairs, replacements or the installation of additional erosion control measures must be completed before the project resumes. 

d.   Proper maintenance includes removal of sediment and debris from erosion controls like silt fences or hay bales once it has reached on-third of the exposed height of the control.

12. Stormwater management. Any action that will expand, recondition, reconstruct, or replace pavement, replace a stream crossing, otherwise increase the contributing impervious surface within the project area, or create a new stormwater conveyance or discharge facility, must have a stormwater management plan that is developed and carried out by the applicant, commensurate with the scale of the action, and approved by NMFS. The stormwater plan submitted for approval must include all of the information called for by the “Checklist for Submission of a Stormwater Plan” (ODEQ 2008, or most recent version), or an explanation of why any missing information is not applicable to a specific project.

13. Site restoration. Any action that results in significant disturbance of riparian vegetation, soils, streambanks, or stream channel must have a site restoration plan that is developed and carried out by the permittee (or Corps), that is commensurate with the scale of the action. The goal of the plan is to ensure that riparian vegetation, soils, streambanks, and stream channel are cleaned up and restored after the action is complete. No single criterion is sufficient to measure restoration success, but the intent is that the following features should be present in the upland parts of the project area, within reasonable limits of natural and management variation:

a.   Human and livestock disturbance, if any, are confined to small areas necessary for access or other special management situations.

b.   Areas with signs of significant past erosion are completely stabilized and healed, bare soil spaces are small and well-dispersed. 

c.   Soil movement, such as active rills and soil deposition around plants or in small basins, is absent or slight and local.

d.   Native woody and herbaceous vegetation, and germination microsites, are present and well distributed across the site. 

e.   Plants are native species and have normal, vigorous growth form, and a high probability of remaining vigorous, healthy and dominant over undesired competing vegetation. 

f.    Vegetation structure is resulting in rooting throughout the available soil profile. 

g.   Plant litter is well distributed and effective in protecting the soil with little or no litter accumulated against vegetation as a result of active sheet erosion (“litter dams”).

h.   A continuous corridor of shrubs and trees appropriate to the site are present to provide shade and other habitat functions for the entire streambank. 

i.    Streambanks are stable, well vegetated, and protected at margins by roots that extend below baseflow elevation, or by coarse-grained alluvial debris.

14. Compensatory mitigation. Any action that will permanently displace riparian or aquatic habitats or otherwise prevent development of properly functioning condition of natural habitat processes will require compensatory mitigation to fully offset those impacts.

a.   Examples of actions requiring compensatory mitigation include construction of a new or enlarged boat ramp or float, the addition of scour protection to a boat ramp, or construction of new impervious surfaces without adequate stormwater treatment.

b.   For displaced riparian and aquatic habitat, the primary habitat functions of concern are related to the physical and biological features essential to the long-term conservation of listed species. Those are water quality, water quantity, channel substrate, floodplain connectivity, forage, natural cover, space, and free passage. Examples of acceptable mitigation for riparian losses includes planting trees or other woody vegetation in the riparian area, removal of existing overwater structures or restoration of shallow-water, off-channel, or beach habitat by adding features such as submerged or overhanging large wood, aquatic vegetation, large rocks and boulders, side channels and undercut banks.

c.   For new impervious surfaces with inadequate stormwater treatment, the primary habitat functions of concern are water quality and water quantity. Examples of acceptable mitigation for inadequate stormwater management includes providing adequate stormwater treatment at an alternate site where it did not exist before or retrofitting an existing but substandard stormwater facility to provide capacity necessary to infiltrate and retain the proper volume of stormwater.

d.   As part of NMFS’s review under clause 3 above, NMFS will determine if the proposed compensatory mitigation fully offsets permanent displacement of riparian or aquatic habitats and/or impacts that prevent development of properly functioning processes.

 

15. Preconstruction activity. Before alteration of the action area, flag the boundaries of clearing limits associated with site access and construction to minimize soil and vegetation disturbance, and ensure that all temporary erosion controls are in place and functional.

16. Site preparation. During site preparation, conserve native materials for restoration, including large wood, vegetation, topsoil and channel materials (gravel, cobble and boulders) displaced by construction. Whenever practical, leave native materials where they are found and in areas to be cleared, clip vegetation at ground level to retain root mass and encourage reestablishment of native vegetation. Building and related structures may not be constructed inside the riparian management area.

17. Heavy equipment. Heavy equipment will be selected and operated as necessary to minimize adverse effects on the environment (e.g., minimally-sized, low pressure tires, minimal hard turn paths for tracked vehicles, temporary mats or plates within wet areas or sensitive soils); and all vehicles and other heavy equipment will be used as follows:

a.   Stored, fueled and maintained in a vehicle staging area placed 150 feet or more from any waterbody, or in an isolated hard zone such as a paved parking lot.

b.   Inspected daily for fluid leaks before leaving the vehicle staging area for operation within 50 feet of any waterbody.

 

 

c.   Steam-cleaned before operation below ordinary high water, and as often as necessary during operation to remain free of all external oil, grease, mud, seeds, organisms and other visible contaminants.

 

d.   Generators, cranes and any other stationary equipment operated within 150 feet of any waterbody will be maintained and protected as necessary to prevent leaks and spills from entering the water.

18. In-water work period. All work within the active channel will be completed in accordance with the Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife resources (ODFW 2000, or the most recent version), except as follows:

a.   All in-water work in the Willamette River mainstem between Willamette Falls and the confluence with the Columbia River must be completed between July 1 and October 31.

b.   All in-water work in the Columbia River mainstem below Bonneville Dam, except pile driving, must be completed between November 1 and December 31.

c.   Pile driving in the Columbia River mainstem below Bonneville Dam must be completed between October 1 and November 31.

d.   Hydraulic and topographic measurements and encased geotechnical drilling may  be completed at any time, if a fish biologist determines that no adult fish are congregating for spawning and no redds are occupied by eggs or pre-emergent alevins within 300 feet of the work site. 

19. Actions that require work area isolation. Any action that involves excavation (other than access management), backfilling, embankment construction, or similar work below ordinary high water where adult or juvenile fish are reasonably certain to be present, or 300 feet or less upstream from spawning habitats, must be effectively isolated from the active stream.

20. Fish capture and removal. Whenever work isolation is required and ESA-listed fish are likely to be present, the applicant must attempt to capture and remove the fish as follows: 

a.   A fishery biologist experienced with work area isolation and competent to ensure the safe capture, handling and release of all fish will supervise this part of the action, and complete the fish salvage form from Appendix C that will be submitted with the action completion report. 

b.   Any fish trapped within the isolated work area must be captured and released using a trap, seine, electrofishing, or other methods as prudent to minimize the risk of injury, then released at a safe release site.

c.   If electrofishing is used to capture fish, that work must consistent with NMFS’ electrofishing guidelines (NMFS 2000).

21. Piling installation. Pilings may be concrete, steel round pile 24 inches in diameter or smaller, steel H-pile designated as HP24 or smaller, or wood that has not been treated with preservatives or pesticides. Any proposal to use wood pilings treated with preservatives or pesticides is not covered by this consultation and will require individual consultation. 

a.   When practical, use a vibratory hammer for piling installation. For pile driving in the Columbia River in the month of October, only a vibratory hammer may be used.

b.   Jetting may be used for piling installation in areas with coarse, uncontaminated sediments.

22. Pile driving with an impact hammer. When using an impact hammer to drive or proof steel piles, one of the following sound attenuation methods must be used: 

a.   Completely isolate the pile from flowing water by dewatering the area around the pile.

b.   If water velocity is 1.6 feet per second or less, surround the piling being driven by a confined or unconfined bubble curtain (see NMFS and USFWS 2006, Wursig et al. 2000, and Longmuir and Lively 2001) that will distribute small air bubbles around 100% of the piling perimeter for the full depth of the water column.

c.   If water velocity is greater than 1.6 feet per second, surround the piling being driven by a confined bubble curtain (e.g., a bubble ring surrounded by a fabric or non-metallic sleeve) that will distribute air bubbles around 100% of the piling perimeter for the full depth of the water column.

23. Pile driving where Steller sea lions may be present. If the action area is between Bonneville Dam and the mouth of the Columbia River, or outside of the Columbia River but within 10-miles of a Steller sea lion haul-out[1], the following conditions apply:

a.   A biologist qualified in marine mammal identification will be on site during all pile driving and will notify the operator to cease operations if a Steller sea lion enters the 1,200 foot radius of the pile.

b.   Pile driving may not begin if Steller sea lions are within 1,200 feet of the pile being driven.

c.   Pile driving must cease if Steller sea lions approach to within 1,200 feet of the pile being driven.

24. Pile removal. Use the following steps to minimize creosote release, sediment disturbance and sediment resuspension:  

a.   Install a floating surface boom to capture floating surface debris.

b.   Keep all equipment (e.g., bucket, steel cable, vibratory hammer) out of the water, grip piles above the waterline, and complete all work during low water and low current conditions.

c.   Dislodge the piling with a vibratory hammer, when possible; never intentionally break a pile by twisting or bending. 

d.   Slowly lift the pile from the sediment and through the water column. 

e.   Place the pile in a containment basin on a barge deck, pier, or shoreline without attempting to clean or remove any adhering sediment – a containment basin for the removed piles and any adhering sediment may be constructed of durable plastic sheeting with sidewalls supported by hay bales or another support structure to contain all sediment and return flow which may otherwise be directed back to the waterway. 

f.    Fill the holes left by each piling with clean, native sediments immediately upon removal.

g.   Dispose of all removed piles, floating surface debris, any sediment spilled on work surfaces, and all containment supplies at a permitted upland disposal site.

25. Broken or intractable piling. When a pile breaks or is intractable during removal, continue removal as follows:

a.   Make every attempt short of excavation to remove each piling, if a pile in uncontaminated sediment is intractable, breaks above the surface, or breaks below the surface, cut the pile or stump off at least 3 feet below the surface of the sediment. 

b.   If dredging is likely where broken piles are buried, use a global positioning system (GPS) device to note the location of all broken piles for future use in site debris characterization.

 

 

26. Pesticide-treated wood installation. ^[2]Use of lumber, pilings, or other wood products treated or preserved with pesticidal compounds may not be used below ordinary high water, or as part of an in-water or overwater structure. 

27. Pesticide-treated wood removal. When it is necessary to remove pesticide-treated wood, the following conditions apply.

 

a.   Ensure that, to the extent possible, no wood debris falls into the water. If wood debris does fall into the water, remove it immediately.

b.   After removal, place wood debris in an appropriate dry storage site until it can be removed from the project area.

c.   Do not leave wood construction debris in the water or stacked on the streambank at or below the ordinary high water.

d.   Evaluate wood construction debris removed during a project, including pesticide-treated wood pilings, to ensure proper disposal of debris. 

 

1.3.1.3 Types of Actions In-water or Over-water Structures

28. Boat ramps. All boat ramps must consist of pre-cast concrete slabs below ordinary high water, and may be cast-in-place above ordinary high water if completed in the dry. Rock may be used to prevent scouring, down-cutting, or failure at the boat ramp, provided that the rock is no larger than necessary and does not extend further than 4-feet from the edge of the ramp in any direction.

29. Educational signs. To educate the public about pollution from boating activities and its prevention, the Corps shall install (Corps project) or require the following information or its equivalent to be posted on a permanent sign that will be maintained at each permitted facility that is used by the public (e.g., a public boat ramp or marina): 

a.   A description of the ESA-listed species which are or may be present in the project area.

b.   Notice that adults and juveniles of these species are protected by the ESA and other laws so that they can successfully migrate, spawn, rear, and complete other behaviors necessary for their recovery.

c.   Therefore, all users of the facility are encouraged or required to: (i) Follow procedures and rules governing use of sewage pump-out facilities; (ii) minimize the fuel and oil released into surface waters during fueling, and from bilges and gas tanks; (iii) avoid cleaning boat hulls in the water to prevent the release of cleaner, paint and solvent; (iv) practice sound fish cleaning and waste management, including proper disposal of fish waste; and (v) dispose of all solid and liquid waste produced while boating in a proper facility away from surface waters.

 

30.              Flotation material. All synthetic flotation material must be permanently encapsulated to prevent breakup into small pieces and dispersal in water. 

31.              New or replacement floats. Any new or replacement float must be placed at least 50 feet from the shoreline (100-feet from the shoreline in the Columbia River) as measured at ordinary low water or mean lower low water and may not be placed in an estuarine area with submerged aquatic vegetation. Any float wider than 6-feet must also include (a) an open area of grating that is at least 50% of the total surface area,; or (b) be placed where current velocity is at least 0.7 feet per second year-round. Floats may not exceed 10’ in width or 40’ in length or a total of 400 square feet. 

 

32.              Piscivorous birds. All float pilings, mooring buoys, and navigational aids must be fitted with devices to prevent perching by piscivorous birds.

 

 

33.              Relocation of existing structures in a marina. Any existing structure that is relocated in a marina must remain within the existing overall footprint, but no closer than 50 feet of the shoreline (100 feet in the Columbia River) as measured at ordinary low water or mean lower low water.

 

34.              Repair or replacement of wall and roof components for a covered moorage or boat house. Any replacement for a roof, wall, or garage door of a covered moorage or boat house must be made of translucent materials or incorporate skylights to allow light penetration.

 

Dredging

35. Dredging to Maintain Vessel Access. When dredging to maintain access to previously authorized docks, wharfs, mooring structures, and boat ramps, the following conditions apply:

a.   All dredged materials and subsequent leave surface must be suitable and approved for in-water disposal using newly acquired or historical data based on criteria in the Sediment Evaluation Framework ((USACE et al. 2009).

b.   All dredged sediment and debris must be side cast or returned to the channel within the ordinary high-water line downstream from the dredging site where it will be recruited by the next annual high flow and continue to provide aquatic habitat functions.

c.   The dredging must not alter the character, scope, size, or location of the project area or previously authorized dredge prism.

 

 

 

 

 

 

 

 

 

 

36. Dredging to Maintain Functionality. When discharging or excavating to maintain the functionality of a channel, culvert, intake, or outfall, the following conditions apply:

a.   Either the discharge or excavation may not exceed 25 cubic yards, or include any water intake or point of diversion that does not have a fish screen that is installed, operated and maintained according to NMFS fish screen criteria and meet NMFS fish passage criteria.

b. All dredged materials and subsequent leave surface must be suitable and approved for in-water disposal using newly acquired or historical data based on criteria in the Sediment Evaluation Framework.

c. All dredged sediment and debris must be side cast or returned within the annual high flow channel downstream from the dredging site where it will continue to provide aquatic habitat functions.

d. The dredging must not alter the character, scope, size, or location of the project area.

SLOPES IV Programmatic – In-water Over-water Structures
Action Completion Form

Within 60 days of completing all work below ordinary high water (OHW) as part of an action completed under the SLOPES IV In-water Over-water Structures programmatic opinion, submit the completed action completion form with the following information to NMFS at slopes.nwr@noaa.gov. 

 

Corps Permit #:
Corps Contact:
Action Title
Start and End Dates for the completion of in-water work:	Start:		End:
Any Dates work ceased due to high flows:

 

Include With This Form:

 

1.                  Photos of habitat conditions before, during, and after action completion

2.                  Evidence of compliance with fish screen criteria for any pump used

3.                  A summary of the results of pollution and erosion control inspections, including any erosion control failure, contaminant release, and correction effort

4.                  Number, type, and diameter of any pilings removed or broken during removal

5.                  A description of any riparian area cleared within 150 feet of OHW

6.                  Linear feet of bank alteration

7.                  A description of site restoration

8.                  A completed Salvage Reporting Form from Appendix D for any action that requires fish salvage

9.                  As-Built drawings for any action involving riprap revetment, stormwater management facility, or bridge rehabilitation or replacement.

SLOPES IV Programmatic – In-water Over-Water Structures
Salvage Reporting Form

Within 10 days of completing a capture and release as part of an action completed under the SLOPES IV In-water Over-water Structures programmatic opinion, the applicant or, for Corps civil works actions, the Corps must submit a complete a Salvage Reporting Form, or its equivalent, with the following information to NMFS at slopes.nwr@noaa.gov. 

 

Corps Permit #:
Corps Contact:
Action Title
Date of Fish Salvage Operation:
Supervisory Fish Biologist (name, address & telephone number):

 

Include With This Form:

 

1.                  A description of methods used to isolate the work area, remove fish, minimize adverse effects on fish, and evaluate their effectiveness.

2.                  A description of the stream conditions before and following placement and removal of barriers.

3.                  A description of the number of fish handled, condition at release, number injured, and number killed by species.

 

SLOPES IV Programmatic – In-water Over-water Structures
Restoration/ Compensatory Mitigation Reporting Form

By December 31 of any year in which the Corps approves that the site restoration or compensatory mitigation is complete, the Corps, must submit a complete a Site Restoration/Compensatory Mitigation Reporting Form, or its equivalent, with the following information to NMFS at slopes.nwr@noaa.gov. 

 

Corps Permit #:
Corps Contact:
Action Title:
Type of Activity:

 

Include With This Form:

1.                  Photos of habitat conditions before, during, and after action completion

2.                  Start and end date for the work.

3.                  A summary of the results of mitigation or restoration work completed.

 

 

Click here for this document, NWR-2013-10411, on the National Oceanic and Atmospheric Administration's website or view it below.