NOTE: This is the text of the August 19,
1996 Public Notice. Some of the provisions were modified since that time.
NUMBER: LOP 96-1 DATE: August 19,1996
Regulatory Branch 333 Market Street
PROJECT MANAGER: Michael J. Lamprecht (707) 443-0855
San Francisco, CA 94105-2197
e-mail mlampprecht@smtp.spd.usace.army.mil
The U. S. Army Corps of Engineers, San Francisco District (Corps) has adopted a Letter of Permission (LOP) procedure for the authorization of work described herein. The purpose of the LOP procedure is to streamline Section 404 Clean Water Act (CWA) (33 U.S. C. 13 44) authorization for excavation and related work not posing significant adverse individual or cumulative impacts. In addition, the Corps regulates work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899. Activities authorized under this LOP procedure may also include Section 10 authorization under the Rivers and Harbors Act (3 3 U.S. C. 403).
A Public Notice requesting public comments on the proposed LOP procedures was issued on April 3, 1996. All comments received were considered in finding the procedures.
The LOP's issued to authorize the individual work items will contain limitations intended to protect the environment and natural and cultural resources. In cases where the District Engineer (DE) considers it necessary, applications will be required for individual permits.
The enclosed "Letter of Permission Procedure, Gravel Mining and Excavation Activities within Humboldt County" details the scope and location of work, terms and conditions, and application procedures pertinent to obtaining a Department of the Army LOP under the procedure. In addition, it lists special conditions and monitoring activities that will be required to provide consistent information for decision making within this process.
PUBLIC INTEREST REVIEW FACTORS: The Corps has assessed the environmental impacts of the LOP96-1 procedure in accordance with the requirements of the National Environmental Policy Act of 1969 (Public Law 91-190), and pursuant to Council on Environmental Quality's Regulations, 40 CFR 1500- 1508, and Corps of Engineers' Regulations, 33 CFR 230 and 325, Appendix B, and has concluded in a Finding of No Significant Impact (FONSI). Consequently, the Corps has determined that an Environmental Impact Statement (EIS) is not required.
PUBLIC REVIEW: Any person may make a written request to review the environmental documentation, by setting forth the particular reasons for the request. Copies of the environmental documentation will be on file at the San Francisco District office and the Eureka Field Office. Requests for additional information should be submitted to Lieutenant Colonel Richard G. Thompson, District Engineer, Attention Mr. Michael Lamprecht, Eureka Field Office Regulatory Branch, U.S. Army Corps of Engineers, P.O. Box 4863, Eureka, California 95502.
Telephone inquiries may be directed to Mr.
Michael Lamprecht at(707)443-0855,
or e-mail: mlamprecht@smtp. spd.usace.army.mil.
Interested parties are hereby notified that, in accordance with Title 33 CFR 325.2(e) published in the Federal Register, November 13, 1986, The U. S. Army Corps of Engineers San Francisco District (Corps) has adopted a Letter of Permission (LOP) procedure for the authorization of work described herein. The purpose of the LOP procedure is to streamline Section 404 of the Clean Water Act authorization for gravel mining and extraction activities in Humboldt County that do not pose significant adverse individual or cumulative impacts.
In addition, the Corps regulates work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899. Activities authorized under this LOP procedure may also include Section 10 authorization.
The LOP's to be issued under this procedure will contain limitations intended to protect the environment and natural and cultural resources. In cases where the District Engineer (DE) considers it necessary, applications will be required for individual permits.
SCOPE OF WORK:
Work authorized by LOP under this procedure is limited to discharges of dredged or fill material associated with gravel mining activities in waters of the United States, including navigable waters of the United States, within Humboldt County, California. Activities that may be authorized by LOP under this procedure include, but are not limited to, sand and gravel mining and work associated with these activities, such as temporary stock piling of gravel in the stream and construction of temporary coffer dams and road crossings.
Impacts to waters of the United States, including wetlands, shall be avoided or minimized through the use of practicable alternatives. Reasonable compensation for unavoidable adverse impacts to waters of the United States will be required. Work that would have unmitigatable adverse impacts on the aquatic environment or cause a substantial reduction in the extent of waters of the United States will not be authorized by LOP. The activities authorized under this LOP procedure shall be part of a single and complete project.
EVALUATION PROCEDURES:
Applicants shall submit complete applications, after consulting with the CHERT (County of Humboldt Extraction Review Team), to the Corps for review to determine whether the excavation activity qualifies under this LOP procedure. CHERT, a team of hydrologists and a botanist approved by the Corps, will help identify areas of concern and locations for cross-section monitoring.
If the activity qualifies under the LOP procedure, it will be authorized for three years. However, each permittee must also submit yearly monitoring data regarding extraction amounts, cross-sectional information, biological monitoring and aerial photos.
Each year, in March, the Corps will conduct a public interest evaluation and coordination meeting with the Environmental Protection Agency (EPA), National Marine Fisheries Service (NMFS), U.S. Fish and Wildlife Service (USFWS), California Coastal Commission (CCC), California Department of Fish and Game (CDFG), and the California Regional Water Quality Control Board (RWQCB) to review new applications and yearly compliance data of previously authorized activities. If a proposed (new) activity will meet the conditions of the LOP procedures, it will be authorized by LOP. If an authorized activity has met the conditions of the LOP, and there is assurance that it's planned operation for the next season will meet the LOP conditions, based on the information submitted, it will be allowed to continue for the next season under the existing authorization.
Should an agency or member of the public object to continuing an activity under an existing authorization, based on evidence of non-compliance or evidence of more than minimal impacts, the Corps will suspend and revoke the existing authorization and require an individual permit unless the permittee can demonstrate compliance with the LOP, or reduce the future impacts of its operations to minimal impacts, and mitigate for past non-compliance.
The general time line for the LOP process is stated below. Biological monitoring dates are listed in Appendix D.
FEB 1 New Class A and all class B projects (See Application Procedures for definition of Class A and B projects) must submit notification to the Corps with environmental documentation that is submitted to the Lead Agency.
FEB 1 CHERT annual report that evaluates the past extractions, provides recommendations on future extractions, identifies changes in the mapped riparian areas, lists the cumulative amount of impacted riparian vegetation from extraction activities, includes the biological monitoring, and provides the status of mitigation areas approved by the Corps and the other regulatory agencies.
MAR Gravel Week: Corps meets with other Agencies to review permit applications.
SPRING Aerial oblique photos to be taken for Class A projects.
MAY 15 Gravel extraction plans reviewed by CHERT submitted, with CHERT recommendations, to the Corps, unless late seasonal rains prevent data gathering. Corps then will establish new deadline. Class B projects due to Corps,
SEP 20 - OCT 7 Stereoscopic aerial pictures to be taken.
OCT 1 Gravel stockpiled on non Wild and Scenic river bars must be removed by Oct 1.
OCT
15
Regrading must be completed for all gravel bars. All gravel extraction ceases on
river bars, unless an extension is given.
NOV 1 - FEB 28 Planting of mitigation areas.
DEC
1
Post cross-section data and biological monitoring data submitted to Corps and
CHERT except for data gathered in Nov and Dec.
DEC 31 Mitigation monitoring reports due to Corps.
JAN
I
Biological monitoring data gathered in Nov - Dec submitted to Corps & CHERT.
GRAVEL EXTRACTION RESTRICTIONS:
Projects authorized under the LOP procedure are subject to the following limitations. The Corps has the right to add or modify conditions as appropriate.
I . Excavation: Excavation for gravel mining purposes shall not occur in the active channel (area where water is flowing unimpeded through the river channel), but remain a minimum of 1 vertical foot elevation above the current water surface and a minimum of 6 feet horizontally from the current water's edge (this setback is known as the buffer). To aid compliance with these setbacks the area of extraction shall be clearly flagged, painted with a environmentally benign paint, or staked. Excavated material shall be skimmed off the surface. Other methods of excavation, such as trenching, may be approved by the Corps, however, these alternative designs must be discussed with other resource agencies and the CHERT prior to submitting the extraction plans in the spring.
Temporary storage of excavated material may occur on the gravel bar, but must be removed by October 1. Temporary stockpiling of gravel on bars that are on rivers listed under the Wild and Scenic Rivers Act may occur during the active work week, Monday through Saturday, but must be removed on or before Saturday of each weekend. Work on gravel bars shall be limited to Monday through Saturday, 7:00 a.m. to 6:00 p.m.
Modifications to excavation procedures may be made to increase fisheries and wildlife habitat with Corps approval. Haul roads shall follow the shortest route possible while avoiding sensitive areas such as riparian vegetation, and shall be scarified after extraction is complete to prevent compaction of the gravel bar.
All riparian woody vegetation and wetlands must be avoided to the maximum extent possible. Any riparian vegetation or wetland that is to be disturbed must be clearly identified by mapping. Woody vegetation that is part of a contiguous 1/8 acre complex, or is at least 2 inches diameter breast height (DBH) that is disturbed must be mitigated.
Impacts to other woody vegetation must be described and submitted to the Corps and CHERT with the gravel extraction plans. These impacts may require mitigation at the discretion of the Corps. Impacted areas which must be mapped consists of riparian vegetation watch have driplines within 25 feet of excavation activities (excavation, stockpiling, parking, etc ... ) or wetlands which are filled, excavated or drained. Mitigation for impacts to woody vegetation shall not be required for pre-existing haul roads, stockpile areas and facilities (See discussion under Required Mitigation).
Gravel removal must remain a minimum distance of 500 feet from any structure (i.e. bridge, water intake, dam, etc ... ) in the river. For bridges, the minimum setback distance is the length of the bridge or 500 feet, whichever is greater. Gravel removal may encroach within this setback if approval is given by owners of these structures and approved by the Corps.
2. Regrading: The project area must be regraded before the water levels rise in the rainy season and must be completed by October 15. Regrading includes filling in depressions, grading the construction/excavation site according to prescribed grade, sloping downward to the upper buffer's edge and/or downstream, and removing all temporary fills from the project area.
3. Timing: Unless the letter of permission is specifically modified, gravel extraction shall not commence until June 1, and shall cease by October 15 of each year. Regrading procedures shall be completed prior to October 15 of each year. Requests for extensions of these time periods will be reviewed on a case by case basis. The applicant, however, must have regraded the site before an extension can be authorized. Requests for extensions must include an approved CDFG Stream Alteration Agreement (SAA) extension or exemption.
4. Stream crossings for gravel mining purposes: The size and number of stream crossings must be kept to a minimum. All stream crossings must be spanned to the maximum length possible using either a flatcar or bridge span, and must maintain a three foot elevation above the water surface. Culverted crossings may be utilized in certain circumstances where the size and nature of the crossing dictates that culverts are more appropriate. Information describing the need for culverts must be submitted with culvert requests and shall be supplied to the CHERT, CDFG, and the Corps. All crossings and associated fills must be identified as to the type (culvert vs. flatcar) and location in the submitted yearly information, and removed after excavation ceases, but before October 15 of each year unless specifically modified in any extension authorized by the Corps,
5. Wild and Scenic Rivers: Sections of the Eel, Klamath, Trinity and Van Duzen rivers in Humboldt County are designated recreational and scenic. For a list of these recreational and scenic river sections see Appendix B. For new projects (any project which has not been previously authorized by the County or a Federally recognized tribe by vested rights, conditional use permit or exemption by written notice, as of April 3, 1996) in these river sections, the applicant must provide information demonstrating that the activity will not degrade the fisheries, historical, scenic and/or recreational values for which the river is designated. For example, new mining operations where new processing plants are to be constructed along portions of a scenic river generally would not be authorized by this letter of permission.
6. Endangered Species: All applicants shall submit, as part of the application, a written assessment by a qualified biologist describing the potential effects of the project on federally threatened, endangered, or proposed species under the Endangered Species Act. This assessment shall include, at a minimum, an account of habitat suitability within a 0.25 mile radius of the project site, and pertinent sighting information from available sources including, but not limited to, wildlife sighting databases maintained by the California Department of Fish and Game and U.S. Fish and Wildlife Service.
Permittees with operations on the main stem Eel River, downstream of the confluence with the South Fork Eel River, may affect the western snowy plover. After going through informal consultation with the USFWS, it has been determined that these projects are not likely to adversely affect the western snowy plover if operators follow the conditions of Appendix E. Operators with projects on the main stem Eel River, below the confluence with the South Fork Eel River, who intend to commence operations not in accordance to Appendix E shall notify the Corps so that it can initiate consultation with the USFWS in compliance with Section 7 of the Endangered Species Act.
7. New projects: A new project
is any project which has not been previously authorized under the County or a Federally
recognized tribe by vested rights, conditional use permit or exemption by written notice,
as of April 3, 1996. For new projects, the applicant must submit a preliminary
project description including excavation and processing locations on a USGS topo map,
estimated quantity of material proposed to be excavated, and the Endangered Species
assessment to the Corps by February I of the year in which gravel extraction is to
occur. Projects removing 5000 cubic yards or more of material must also submit
aerial photos.
8. Special Conditions: Additional special conditions may be added to the LOP on a case by case basis to minimize adverse impacts to the aquatic ecosystem and to the scenic and recreational values of the rivers listed in the Wild and Scenic Rivers Act.
LOCATION OF WORK:
An LOP issued under the provisions of this procedure shall apply to work in waters of the United States, including navigable waters of the United States, within Humboldt County, California and also any projects that straddle the county lines.
AUTHORIZATION FROM OTHER AGENCIES:
The permittee is responsible for obtaining any and all additional federal, state, tribal, or local permits that may be required, which include, but are not limited to:
I . STATE WATER QUALITY CERTIFICATION:
California's Regional Water Quality Control Board's (RWQCB) certification is required for work within the state of California, except for work within the boundaries of a Federally recognized Indian Reservation (See 95 below). The State has adopted water quality standards including implementation measures which avoid and mitigate adverse impacts and prohibit discharges which pollute waters of the State. Gravel mining extraction activities authorized under this LOP procedure are activities for which the State has waived site specific prescriptive regulation so long as the activity complies with specific conditions and does not violate the standards. Since the RWQCB has waived prescription of waste discharge requirements, the State will take no further action on requests for "401 Certification" for activities that fall within the scope of the waiver. The State, however, retains full authority to enforce its standards.
The state of California has adopted general National Pollution Discharge Elimination System (NPDES) permits to cover those mining activities which must obtain permits to discharge stormwater associated with industrial activity - as defined in 40 CFR Section 122.26(b)(14). For information about NPDES requirements, applicants can contact the RWQCB, North Coast Region, at 5550 Skylane Boulevard, Suite A, Santa Rosa, CA 95403.
2. California Department of Fish and Game:
When streambed materials such as sand and gravel are to be disturbed or removed from waters in the state of California, the permittee must obtain a Stream Alteration Agreement from the CDFG, except when working within the boundaries of a Federally recognized Indian Reservation (See #5 below). The permittee can contact the CDFG at California Department of Fish and Game, Region 1, 601 Locust Street, Redding, California 96001.
3. California Department of Conservation Division of Mines and Geology:
All gravel and mining operations must either be permitted by or exempted by the California Department of Conservation Division of Mines and Geology's Lead Agency (Lead Agency), except for work within the boundaries of a Federally recognized Indian Reservation (See #5 below). The Lead Agency for Humboldt County is: Humboldt County Planning Office, 3015 H Street, Eureka, California 95501. Failure to provide proof of a conditional use permit, vested rights or exemption letter will preclude use of the LOP procedure.
4. California Coastal Commission/ County of Humboldt Planning and Building Department:
Sand and gravel extraction and other development activities located within the
Coastal Zone may require a Coastal Development Permit and a Coastal Zone Management Act
Consistency Concurrence from either the California Coastal Commission located at 45
Fremont Street, Suite 2000, San Francisco, California 94105 2219, or the County of
Humboldt Planning and Building Department located at 3015 H Street, Eureka,
California 95501.
5. Environmental Protection Agency/Indian Reservation
Activities within the boundaries of a Federally recognized Indian Reservation need to obtain Water Quality Certification from the EPA or from the Indian Reservation (if it is authorized by the EPA to grant water quality certification). In addition, there may be other permits required by the Indian Reservation that are not listed here. The applicant shall contact the appropriate Indian Reservation for more information.
6. California State Lands Commission (SLC):
Activities that occur below the mean high water mark on tidal waterways and below the ordinary high water mark on non-tidal waterways may have to obtain easements from or pay fees to the California State Lands Commission (SLC). The SLC can be contacted at 100 Howe Avenue, Suite 100 South, Sacramento, California 95825-8202, or reached at (916) 574-1800.
CONDITIONS OF THE LETTER OF PERMISSION:
In addition to limitations discussed in the scope of work, projects authorized by LOP are subject to the general conditions contained in Appendix A and any special conditions that may be added.
APPLICATION PROCEDURES:
Applications shall be divided into two categories based on quantity of material removed from the river basins. The two categories are:
All new projects (See #7 under General Restrictions on Page 3) must submit a notice of intent to mine gravel to the Corps, Eureka Field Office, by February I of that year.
In all cases an application for authorization of work under this LOP procedure must
include a written description of the project, proposed work schedule, the address and
telephone number of a point of contact who can be reached during working hours, an 8.5 by
I I inch vicinity map, and an 8.5 by 11 I inch site or location map showing all the
boundaries of all work to be done (maps and figures can also be on I I by 17 inch
paper). The information may be submitted on an Application for Department of the
Army Permit form (ENG Form 4345) or in any other form which will clearly supply the
information in a concise manner. In general, projects that remove more than 250,000
cubic yards per year will not be considered eligible for authorization under this
permit. Projects will also be considered in relation to other extraction operations.
Class A Projects:
Projects that remove 5,000 cubic yards or more per year of material from the river basin. Project submittal must include a description of the project and at least the following information, unless modified by the Corps, on a yearly basis:
1. A pre-extraction report shall be submitted to the Corps two weeks prior to excavation.
Pre- extraction reports shall include:
A. Cross-section Surveys: Monitoring and Extraction cross-section surveys shall be done according to Appendix C (attached), unless modified by the CHERT team's hydrologists and approved by the Corps. Each year spring surveys shall be submitted by May 15 to the CHERT team, unless river levels and weather prevent data collection, at which point a deadline determined each year by the Corps and CHERT shall be made. Applicants shall submit gravel extraction plans, approved by the CHERT team, to the Corps for approval, prior to commencing gravel extraction operations;
B. A Stream Alteration Agreement (SAA) or any extension signed by the CDFG, or a Riparian Protection and Surface Mining Permit signed by a Federally recognized Indian Reservation. Permits may be obtained concurrently with the Corps permit;
C. A pre-extraction aerial photo of the location. Photos shall be taken the spring of each year and shall include the entire project reach (extraction zone reach of the project site and immediate upstream and downstream reaches within one half length of the extraction zone reach of the project, as measured along the thalweg (the bottom of the low-flow channel)). Pre-extraction photos can be either vertical photos at a scale of 1:6000 or oblique photos showing the same detail. Photos shall diagram proposed extraction activities;
D. A mitigation report containing the mapped areas that are impacted (riparian vegetation and wetlands) and the mitigation proposed to minimize these impacts;
E. For new projects, the applicant must submit to the Corps and the consulting regulatory agencies participating in the March Meetings, by February I of the initial gravel mining year, copies of the environmental documentation required by the Lead Agency when requesting a conditional use permit, vested right or exemption. The Corps may also require additional information.
II. A post-extraction report shall be submitted to the Corps by
December 1 of each year.
Post-extraction reports shall include:
A. A post-extraction survey, which shall be conducted following cessation of extraction and before alteration of the extraction area by flow following fall rains, preferably before October 15. Post-extraction reports shall include the amount and dimensions of material excavated from each area mined. See Appendix C for post-extraction requirements;
B. Stereoscopic photo coverage of the project reach. Photo coverage shall be taken in the low-flow periods and be at a scale of 1:12000. Photos shall be taken from a fixed or vertical oriented (i.e. belly-mounted) camera. Stereoscopic photo coverage shall be taken in late September or early (first week) October and recorded on a 9 inch by 9 inch format;
C. A longitudinal profile view of the thalweg for the active
channel line along the project reach based on the monitoring cross-sections;
D. The results of required biological monitoring report
data as described in Appendix D
(attached), except for information gathered in November and December which are due Jan 1
of the following year.
Projects that remove less than 5,000 cubic yards per year of material from the river
basin.
Class B projects must be physically separated from other gravel operations to be
considered separate projects. Projects cannot be located on the same gravel bar, or
on the same parcel number as other projects, and be considered as separate projects.
The Corps reserves the right to elevate a Class B project to Class A status.
Project submittal must also include a description of the project and at least the following information, unless modified by the Corps, on a yearly basis:
I. A pre-extraction report, submitted by May 15 of the gravel year, that includes:
A. Plan and cross-section view drawings of the project site on 8.
5 by 11 inch or 11 by 17 inch paper. Drawings shall be labeled with dimensions, and
quantities of material removed from each site. Plan views must map any salmonid
spawning sites;
B. A minimum of one monitoring cross-section and five extraction
cross-sections per extraction site (See Appendix
C for cross-section details);
C. A copy of the SAA signed by the CDFG, or a Riparian Protection and Surface Mining
Permit signed by the Federally recognized Indian Reservation. Permits may be
obtained concurrently with the Corps permit;
D. Photos of the mining area before excavation. Photo location shall be mapped
(location and direction) to maintain consistency with post-extraction report photos.
E. Mapping and description, including size, species and number, of any riparian vegetation that will be removed, cut, or within 25 feet of excavation, stockpiling or trafficking of gravel and any wetland that will be impacted. Also included in submittal shall be a mitigation plan to minimize any unavoidable impacts.
II. A post project report, due by December 1 of extraction year, which shall include:
A. Post-extraction data for extraction and monitoring cross-sections according to Appendix C.
B. Photos of the mining area after excavation. Photos shall be taken from the same location as pre project photos.
Each permittee shall mitigate impacts to wetlands and riparian zones in the following manner: avoidance of the impact, minimization of the impact, rectifying the impact, reducing or eliminating the impact over time, and finally compensating for impacts. For all unavoidable impacts a mitigation plan shall be submitted with applications for all projects that will adversely affect wetlands and riparian vegetation. Mitigation must consider the size and age of the vegetation removed or adversely impacted. All vegetative mitigation must be planted between November I and February 28 of the year following excavation and must have an approved survival rate over three growing- seasons. Failure to obtain a three year survival rate shall require replanting. Annual reports depicting the survival of vegetation shall be due by Dec. 31 each year for three growing seasons after planting year.
SITE VISITS:
Each year project owners must also inform the Corps upon completion of gravel removal so that a site visit can be planned before the rainy season commences. Notification, by phone or fax, should occur within two days of project completion.
APPLICATION SUBMITTAL:
Applications should be mailed to:
U.S. Army Corps of Engineers
Regulatory Branch
Eureka Field Office
Attention: Mr. Michael Lamprecht
P.O. Box 4863
Eureka, California 95502.
If you have any questions you can telephone the Eureka Office at (707) 443-0855,
Our e-mail address is mlamprecht@smtp.spd.usace.army.mil.
Work may not proceed until the District Engineer has issued an LOP. For projects which have obtained the LOP, the activity may not begin each year until a confirmation letter has been issued by the Corps. It is the applicant's responsibility to insure that the authorized project meets the terms and conditions set forth herein; failure to abide by them will constitute a violation of the Clean Water Act and/or the Rivers and Harbors Act of 1899.
The Corps is responsible for determining compliance with this LOP. The Corps may take actions to rectify projects which are not in compliance. These actions may include, but are not limited to, the following:
A. Permit revocation.
B. Permit suspension.
C. Project and habitat site restoration.
D. Reduction of authorized gravel extraction amounts per year.
No authorization will be granted under a LOP for any excavation or grading that is for the primary purpose of river engineering, channel or river capture, channel realignment or for a project that is likely to result in the above, unless approved by the Corps. Projects outside the scope of this LOP will be considered for authorization by individual permit.
This permit shall become effective on the date of the signature of the District
Engineer, or his authorized representative, and will automatically expire five years from
that date unless the permit is modified, revoked, or extended before that date.
Activities authorized under this permit that have commenced (i.e. are under operation), or
are under contract to commence in reliance on this permit, will remain authorized provided
the activity is completed within twelve months of the expiration, modification, or
revocation of the permit, unless discretionary authority has been exercised by the Corps
on a case-by-case basis to modify, suspend, or revoke the authorization. Prior to
expiration, a public notice seeking public comment will be reissued within five years from
the date of signature of this LOP procedure. The public notice will supply a summary
of past actions and may also seek reauthorization of the this LOP procedure.
BY AUTHORITY OF THE SECRETARY OF THE ARMY:
FOR THE DISTRICT ENGINEER:
Richard G. Thompson
Lieutenant Colonel, Corps of Engineers
District Engineer