STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY
IN THE MATTER OF THE DECISION ON THE NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR THE PROPOSED FINDINGS OF FACT 21ST AVENUE WEST AQUATIC HABITAT RESTORATION PROJECT, CONCLUSIONS OF LAW DULUTH, ST. LOUIS COUNTY, MINNESOTA AND ORDER
Pursuant to Minn. ch. 4410, the Minnesota Pollution Control Agency (“MPCA”) staff prepared and distributed an Environmental Assessment Worksheet (“EAW”) for the proposed 21st Avenue West Aquatic Habitat Restoration project (“Project”) in Duluth, Minnesota. The MPCA hereby makes the following Findings of Fact, Conclusions of Law, and Order (“FOF”) based on: the MPCA staff environmental review; the EAW; information from an earlier EAW by the city of Duluth; the Pilot Project (discussed below); comments and information received during the comment period; and other information in the record of the MPCA.
FINDINGS OF FACT
Parties
1. The MPCA is the Project proposer. The MPCA is also the governmental agency responsible for preparing the EAW for this Project. These FOF refer to the MPCA as the Project “Proposer” when the EAW discusses the MPCA in its role as proposer. The EAW uses “MPCA” when referring to the MPCA in its role as the agency responsible for the environmental review of this Project.
2. The United States Army Corps of Engineers (“Corps”) will serve as the prime contractor for the Proposer. The Corps will transport dredge material on barges to the Project site and place the material into the water at locations specified by the Proposer. In these FOF, “Proposer” also includes all actions taken by the Corps in its capacity as Proposer’s contactor. Where the Corps takes action in a capacity other than as MPCA’s contractor, the FOF refer specifically to the “Corps”.
Project Overview
3. This Project is part of the amended Great Lakes Water Quality Agreement (2012) which is a commitment between the United States (“U.S.”) and Canada to restore and protect the waters of the Great Lakes. The U.S. Environmental Protection Agency (“EPA”) coordinates U.S. activities that fulfill our commitments under the Great Lakes Water Quality Agreement.
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4. The Great Lakes Water Quality Agreement defines an area of concern (“AOC”) as a "geographic area designated by the U.S. and Canada where significant impairment of beneficial uses has occurred as a result of human activities at the local level" (http://www2.epa.gov/great-lakes-aocs). 5. The St. Louis River Area of Concern (“SLRAOC”) is one of the 43 AOCs across the Great Lakes listed under the Great Lakes Water Quality Agreement, where human activities have impaired the area's ability to support aquatic life.
6. Minnesota has received direct grants and has leveraged funds from the EPA Great Lakes Restoration Initiative, the Clean Water Legacy Fund, the Corps’ Operation and Maintenance program funded by the Harbor Maintenance Trust Fund, and other funding sources to clean up contaminated sediments and restore aquatic habitat in the SLRAOC.
7. The SLRAOC Remedial Action Plan (“RAP”) was first published in 1992 under the Great Lakes Water Quality Agreement. The RAP identified impairments in the SLRAOC. Later, the 1995 RAP, the 2002 St. Louis River Habitat Plan (this document outlines restoration visions developed by local stakeholders through the St. Louis River Alliance) and other progress reports provided recommendations and actions to address the environmental impairments.
8. In 2013, the MPCA and the Wisconsin Department of Natural Resources (“WDNR”) updated the RAP to present a comprehensive plan for the SLRAOC, including specific targets, strategies and actions to remove nine beneficial use impairments (“BUIs”). The RAP is updated annually by the MPCA and WDNR; however, the 2013 RAP is the basis for the work on the Project.
9. This Project is intended to assist in the removal of the two of eight remaining impairments that are now found in the SLRAOC. BUI #4 is degradation of benthos (the flora and fauna found on the bottom, or in the bottom sediments of a body of water), and BUI #9 is the loss of fish and wildlife habitat.
10. The Proposer’s goal is to remove all BUIs associated with the SLRAOC by 2025 and request delisting. This goal includes restoration of 50% (1,700 acres) of the estimated 3,400 acres of lost habitat.
11. On September 16, 2013, the Proposer and the Corps entered into a “Partnership Agreement for Technical, Planning and Engineering Assistance between the Department of the Army and Proposer for the lower St. Louis River, Duluth Harbor, Minnesota Area of Concern” (“Partnership Agreement”) to develop and implement the 2013 RAP for the SLRAOC.
12. The 2013 RAP indicates this Project will restore approximately 350 acres of shallow, sheltered habitat by placing dredge material from the channel into the Project area waters to create and restore aquatic habitat features.
Project Description
13. The Corps is authorized by the Rivers and Harbors Act and the Water Resources Development Act to ensure free and open access in the St. Louis River navigation channel by maintaining access through annual dredging. Funds for moving the dredged material for the Project come from the Harbor Maintenance Trust Fund and the Great Lake Restoration Initiative. Authority to move the
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dredged materials outside the navigation channels comes through the EPA utilization of the Economy Act.
14. The Proposer will relocate some of the dredged sediment material from the St. Louis River navigational channel to the Project area to improve aquatic habitat by: (i) converting hardened break walls into gradually sloped shorelines; (ii) adding shoals or islands within deep water flats to improve habitat heterogeneity; and, (iii) reducing the exposure of large open areas to excessive wave energy (fetch).
15. The Proposer will place dredge material and organic matter in the Project area to help create optimal water depth and flow conditions conducive to establishing aquatic vegetation. The aquatic vegetation is needed to support fish and the community of organisms which live on, in, or near the seabed (benthos).
16. The Project will help support construction of natural shorelines. Natural shorelines improve an ecological transition for wildlife between the terrestrial and aquatic habitats, provide low impact access for wildlife and citizens to the estuary, and increase recreation opportunities for citizens.
17. The Proposer will use best management practices (“BMPs”) when placing dredged material in Project areas to ensure the Project complies with state and federal water quality regulations. The Proposer and the Corps will continue to explore options to ensure the Project will implement all BMPs needed to assure the Project’s short-term turbidity impacts are minimized.
18. The Proposer may also obtain dredged sediment from Kingsbury Bay and/or Perch Lake, which are two other SLRAOC habitat restoration projects. Material from Kingsbury Bay and/or Perch Lake contains higher organic content, a more viable seed source, and can improve colonization rates of benthos and aquatic plants compared to other dredged sediments. The Proposer will place the organic material on top of the dredged material that is deposited at the Project site in specified areas in order to ensure critical zones establish plant growth.
19. Kingsbury Bay is a 43-acre aquatic habitat restoration project geared toward restoring open water habitat of varying depths from the mouth of Kingsbury Creek out toward Indian Point Campground. The Project will address the impairment in Kingsbury Bay due to sediment and nutrient loading which has accelerated filling in of the bay. Removing the sediment will provide open water habitat, reduce the invasive narrow leaf cattail in the area and provide rich organic material for other habitat restoration sites in the St. Louis Bay, including the Project if the Proposer deems necessary.
20. Perch Lake is a 21-acre, isolated shallow sheltered bay; it is separated from the estuary by Highway 210. The Project will revitalize the biological connection between Perch Lake bay and Perch Lake estuary by replacing the existing culvert, if needed, as well as restoring the underwater topography (bathymetry) for improved aquatic habitat.
21. The Proposer will conduct intensive post-construction monitoring for three years to demonstrate BUI #4 (degradation of benthos) and #9 (loss of fish and wildlife habitat) have been removed.
22. There are over 60 action steps identified in the SLRAOC RAP that, when completed, will indicate whether BUIs have been successfully removed, including finding positive changes in the chemical,
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physical or biological integrity of the aquatic habitat and changes to the microbial composition of waters used for body contact recreational activities.
CITY OF DULUTH PILOT PROJECT – 2013
23. The MPCA, Minnesota Department of Natural Resources (“MDNR”) and the Corps proposed a three-year pilot project (“Pilot”) at the Project site that was intended to evaluate the physical, chemical, and bioaccumulative response of in-water placement of dredged material, to determine whether placement of this material led to aquatic habitat restoration, and to identify BMPs that would reduce turbidity during the placement of dredged material for the Project.
24. The city of Duluth completed an EAW in 2013 for the Pilot. The Record of Decision, signed by the city of Duluth, concluded that the Pilot would not pose the potential for significant environmental impacts, and, therefore, an Environmental Impact Statement (“EIS”) was not required.
25. The MPCA, MDNR, and the Corps implemented the Pilot from 2013 to November 2015.
26. For the Pilot, the Corps placed approximately 350,000 cubic yards of dredged material at four locations within the Project area, including open flats out from the Western Lake Superior Sanitary District (“WLSSD”) and adjacent to the federal North Navigational Channel, and softening the shoreline by creating gentle slopes to deeper water along Interstate 535 (“I-535”).
27. The city of Duluth, MPCA, MDNR, and the Corps monitored the results of the Pilot. This monitoring evaluated the effectiveness of use and placement of dredged material in achieving the desired goal of establishing aquatic habitat. The monitoring also evaluated turbidity levels in the water column during placement of dredged material, inside and outside of the Pilot site. This included an assessment of how well certain BMPs worked at preventing or reducing turbidity impacts from flowing outside of the Pilot site during dredged materials placement activities. The results are summarized in the EAW for the current Project and suggest a few main themes: a. Material placed within the designed restoration locations does not migrate or interfere with navigation. b. Critical biological zones do support aquatic plants, but may require an additional layer of organic-rich material to amplify growth rates. c. Contaminant concentrations as is, or further sequestered through material placement, do not pose a risk to human health or the environment. d. Short-term turbidity impacts to the water column outside the project site during placement activities: (i) do not pose a significant risk to human health or the environment; (ii) are significantly reduced by using appropriate bmps; and (iii) dissipate and return to ambient levels within two weeks after placement activities cease.
28. The MPCA, both as Proposer and responsible governmental unit (“RGU”), reviewed the results of the Pilot and used them in designing the Project.
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Environmental Review of the Project
29. On September 25, 2015, the Proposer submitted a draft EAW to the MPCA. Since the Project will change the course, current or cross-section of one acre or more of public water, Minn. R. 4410.4300, subp. 27.A. requires preparation of an EAW.
30. Minn. R.4410.0500, subp. 1, states that for any project listed in part 4410.4300 or 4410.4400, the government unit specified in those rules shall be the RGU unless the Project is carried out by a state agency; in that case, the state agency is the RGU.
31. Because the MPCA, a state agency, will carry out the Project, the MPCA is the RGU.
32. An EAW is a brief document designed to set out the basic facts necessary to determine whether an EIS is required for a proposed project or to initiate the scoping process for an EIS (Minn. R. pt. 4410.0200, subp. 24).
33. The MPCA provided public notice of the Project as follows: a. Notice of the availability of the EAW for public comment was published in the EQB Monitor on September 28, 2015, as required by Minn. R. 4410.1500. b. The EAW was available for review on the MPCA website at http://www.pca.state.mn.us/news/eaw/index.html. c. The MPCA provided a news release to media in the northern region of Minnesota and other interested parties on September 30, 2015.
34. During the 30-day comment period ending on October 28, 2015, the MPCA received comments from the National Estuarine Research Reserve System, the University of Minnesota Center for Water and the Environment, the MDNR, and the Duluth Seaway Port Authority. No comments were received from individuals. The comments are included in Appendix A to these Findings.
35. Written comments received during the comment period included questions or concerns about: · Potential impacts to the Common Tern breeding location at Interstate Island · Cumulative potential effects on the floodway · The feasibility of removing BUIs · Concerns whether the Project will support target species such as wild rice · Potential impacts to shorelands · Potential impacts to wetlands
36. The MPCA prepared written responses to the comments received during the 30-day public comment period. These responses are hereby incorporated in Appendix A to these findings.
Standard for Decision on the Need for an EIS
37. The MPCA shall base its decision on the need for an EIS on the information gathered during the EAW process and the comments received on the EAW (Minn. R. 4410.1700, subp. 3). The MPCA must order an EIS for projects that have the potential for significant environmental effects (Minn. R. 4410.1700, subp. 1). In deciding whether a project has the potential for significant
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environmental effects, the MPCA must compare the impacts that may be reasonably expected to occur from the Project with the criteria set forth in Minn. R. 4410.1700, subp. 7. These criteria are:
A. Type, extent, and reversibility of environmental effects.
B. Cumulative potential effects. The responsible governmental unit (RGU) shall consider the following factors: whether the cumulative potential effect is significant; whether the contribution from the project is significant when viewed in connection with other contributions to the cumulative potential effect; the degree to which the project complies with approved mitigation measures specifically designed to address the cumulative potential effect; and the efforts of the proposer to minimize the contributions from the project.
C. The extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority. The RGU may rely only on mitigation measures that are specific and that can be reasonably expected to effectively mitigate the identified environmental impacts of the project.
D. The extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.
Type, Extent, and Reversibility of Environmental Effects
38. The MPCA finds that the types of impacts that may reasonably be expected to occur from the Project include impacts to surface water quality. Comments received during the comment period also suggested potential impacts to the Common Tern breeding location at Interstate Island; potential impacts to shorelands and wetlands; cumulative potential effects on the floodway; concerns about the feasibility of removing beneficial use impairments; and questioned whether there would be support for target species such as wild rice.
With respect to the extent of impacts that the MPCA expects to occur from the Project, the MPCA makes the following findings.
Surface water quality impacts
39. The federal Clean Water Act (“CWA”) requires states to designate beneficial uses for all waters and develop water quality standards to protect each use. Water quality standards include the following: · beneficial uses — identification of how people, aquatic communities and wildlife use our waters · numeric standards — allowable concentrations of specific pollutants in a water body, established to protect the beneficial uses · narrative standards — statements of unacceptable conditions in and on the water · non-degradation — extra protection for high-quality or unique waters and existing uses
40. The CWA also requires states to ensure that the designated beneficial uses, which water quality standards are intended to protect, are actually protected through the following activities:
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· evaluating water monitoring data to assess the quality of the state's water resources · identifying waters that are polluted or impaired or in need of additional protection · setting effluent limits and treatment requirements for discharge permits and cleanup activities · requiring applicants who propose projects that will impact state waters to demonstrate how the project will comply with water quality standards as part of the state regulatory approval process
41. The St. Louis River in the Project site area is classified by the MPCA under Minn. R. 7050.0470 as a Class 2B, 3C, 4A, 4B, 5, and 6 waterbody, and is protected by the general standards for waters of the state (Minn. R. 7050.0210). These classifications protect the water for the following designated beneficial uses: · aquatic life, such as healthy fish, bugs, and plant communities · swimming and other water recreational activities · fish consumption · industrial processes or cooling water · agricultural watering and irrigation · wildlife consumption · aesthetic enjoyment and navigation
42. These designated uses of the St. Louis River are also protected by the general narrative water quality standards applicable to all waters of the state (Minn. R. 7050.0210) and the numeric water quality standards applicable for each classification (Minn. R. 7050.0220 through 7050.0226). In addition, the more restrictive numeric water quality standards for the parameters listed in Minn. R. 7052.0100, subp. 5 (e.g., total mercury limit of 1.3 ng/L), apply because the Project is within the Lake Superior Basin.
43. The Proposer must ensure that results from tests of the construction material and monitoring of the restoration activity do not exceed the applicable standards for each class, which indicates that the specific water quality standards for each classification that applies to the water in the Project site (Minn. R. 7050.0220 through 7050.0226) are met.
44. The Proposer will ensure this Project does not cause an exceedance of state water quality standards (including total suspended solids [15 mg/L] and total mercury [1.3 ng/L]) outside of the Project area (350 acres), by taking actions consistent with the plans and using the BMPs identified here. a. The Proposer will follow the “St. Louis River Area of Concern Quality Assurance Program Plan for Minnesota Based Projects” (January 2015) and the “Quality Assurance Plan Duluth-Superior Harbor, MN-WI, Version 1.0” (October 2015). Both plans contain criteria that must be followed to ensure the dredged material to be used for the Project’s construction complies with the applicable standards. b. The Proposer will also submit to the MPCA for approval, on an annual basis, the specific in- water BMPs proposed to be used to minimize turbidity for that year’s dredging contract. This is a required condition of the CWA MPCA Section 401 Water Quality Certification that must be issued to the Proposer (a draft of which was placed on Public Notice on December 14, 2015). Also see Finding 59 below.
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c. The same BMPs will also minimize the Project’s potential to temporarily contribute to the St. Louis River’s impairments within the immediate work area. Possible BMPs that are being studied at this time for implementation in the Project to minimize the temporary impacts include, but are not limited to: turbidity/silt curtain; horizontal discharge pipe with baffle plate; submerged material diffusers; mechanical placement; visual inspections; minimization of pump operations; vessel traffic and clearance; and, apron/spill controls.
45. The Proposer and the Corps have assessed the likely impacts of sediment and turbidity from the Project by conducting a sediment investigation using contaminant sampling and analysis within the Project site. a. The Proposer identified areas of sediment quality consideration within the Project site where contaminant concentrations exceeded recommended Level II Sediment Quality Targets (“Targets”). These Targets are MPCA screening tools for predicting the probability of potential risk to benthic macroinvertebrates based on contaminant concentrations, and results suggest the areas exceeding SQT Level II Targets are at a depth greater than 50 centimeters, and if left in place or further sequestered with restoration material, pose no risk to human health or the environment. b. The Target exceedances occurred at depths greater than 50 centimeters at a few sampling points within the Project site where remaining sample points did not exceed SQT Level II Targets. The Proposer’s review of the sediment chemistry data did not indicate the exceedances presented a risk to human health and the environment. c. The Proposer recommends leaving areas with elevated contaminant concentrations undisturbed or further isolating them to reduce exposure by adding sediment or excavated organic material that meets the Target to the areas. This sediment management recommendation is incorporated into the design for the Project site. d. The Proposer also analyzed the impact of sediment/turbidity exceeding the contaminant Targets on benthic community conditions. Functional capacity of the benthos is already impaired throughout the Project site. The Proposer’s research has shown no clear source-to- receptor pathways between contaminants and the environment, meaning the Proposer anticipates that sediment with elevated contaminant concentrations is not likely to reach aquatic fish or plants.
46. The MPCA finds that based on the Proposer’s analysis and recommendations, areas exceeding the Level II Sediment Quality Targets do not present a risk to human health or the environment.
47. The MPCA finds that based on the Proposer’s analysis and recommendations, the Target exceedances do not present a risk to human health or the environment
48. The Proposer’s testing of dredged material indicates that in-water placement of dredged material will not cause long term adverse impact to biota or water quality; although the Proposer does anticipate that short-term turbidity impacts will occur to an extent, much like during a rain storm event.
49. The Proposer will only use dredged material that the analyses show does not exceed the Target contaminant standards used on the Project. The Proposer may also use this material to cover areas where in-situ elevated contaminated sediments are found, helping to further sequester these areas from the active benthic zone.
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50. The Proposer will use dredge material for constructing shoals and shallow flats to create more appropriate depths in areas that currently do not support aquatic vegetation.
51. The Proposer’s placement of dredge material will result in short-term turbidity in the water column for approximately one week after completion; however, previous turbidity monitoring during the Pilot indicates turbidity dissipates within 900 feet from the placement area. The Proposer conducted sediment transport modeling which suggest construction material was stable when exposed to typical flows throughout an open-water scenario and extreme events observed over a recent 5-year period.
52. The Proposer will not conduct dredging activities during spring spawning periods, as required in all state and federal agency permit requirements, to minimize displacing or interrupting aquatic spawning adults such as walleye and northern pike.
53. The MPCA finds that, for the reasons discussed above, it does not expect adverse effects on sediment quality as a result of dredged material placement in support of habitat restoration at Project locations.
54. In 2015, the Corps conducted an ecological risk assessment that included the Project area. The assessment determined that the advection and dispersion of contaminants does not pose a significant risk to benthic organisms due to limited potentials for exposure. The assessment also characterized existing sediment conditions and determined where restoration activities would further sequester contaminants.
55. Based on the results of this assessment, the Proposer identified areas of sediment quality consideration within the Project site where moderate contaminants exist at depth, and if left alone or further sequestered with restoration material, would not result in risks to human health or the environment.
56. The Corps and the U.S. Geological Survey (“USGS”) conducted post construction monitoring during the Pilot. The monitoring showed temporal and spatial results as follows: (i) turbidity concentrations returned to background levels at approximately 900 feet from where dredged material was placed; and, (ii) turbidity concentrations gradually decreased within one week after dredged material placement.
57. The Corps and the USGS monitoring demonstrated that the use of appropriate in-water BMPs in the Project site helped reduce the total amount of turbidity affecting the Pilot area.
58. The Proposer will use one or more of the following BMPs to minimize the amount of sediment resulting from dredging: a horizontal discharge pipe with baffle plate; turbidity or silt curtains; submerged material diffusers; daily visual inspections; minimizing pump operations; an apron/guard to prevent material spillage; and mechanical placement of dredged material. Other potential BMPs include bubble curtains, water dams, and measures to divert current or reduce flow volumes impacting the placement operations.
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59. The MPCA evaluated a suite of ecological metrics (e.g., aquatic insects and plants) and determined that the placement of the dredged material at locations within the Project site will improve the ecological health within the site by reducing the impacts of wind and wave energy and supporting the growth of aquatic vegetation.
60. At some locations within the Project, the placement of dredged material will cover existing low- level contaminants in the sediment to help reduce exposure risk. In the short-term, the Proposer will use appropriate BMPs to substantially reduce and minimize the amount of sediment leaving the dredged material placement areas.
61. The MPCA finds that the Project will not create long-term contaminant releases. Short-term exposures (e.g., increased turbidity in the water column) during construction activity are expected but will be managed under permit and certification conditions to prevent the potential for significant environmental effects.
Reversibility of Surface Water Quality Impacts.
With respect to the reversibility of surface water quality impacts that are reasonably expected to occur from this Project, the MPCA makes the following findings.
62. The CWA Section 401 Water Quality Certification, the Section 404 Clean Water Act permit, the Section 10 Rivers and Harbors Act Permit, and the Public Waters Work Permit include BMPs designed to prevent adverse effects on water quality due to dredging operations by minimizing the amount of sediment resulting from dredging.
63. The MPCA expects only short term turbidity impacts to surface water quality within the Project area; these impacts return to background levels typically with two weeks.
Under the 401 Certification, BMPs and the operation are adaptive by design in order to respond to mechanical malfunctions that may results in an exceedance in turbidity. The Proposer will modify the dredging operation and management to ensure that any surface water quality impacts are temporary and not significant.
64. The MPCA expects that any adverse impacts that may occur will be short term in nature and therefore reversible, and the Proposer can modify operations to prevent any further impacts from occurring. The MPCA does not expect any adverse impacts that may occur to be potentially significant, as noted above.
65. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to surface water quality that are reasonably expected to occur from the Project. The Proposer has developed measures to prevent or mitigate these impacts, and the MPCA will include preventative measures in the 401 certification and permit conditions.
66. The MPCA finds that the Project, as it is proposed, does not have the potential for significant adverse environmental effects based on the type, extent, and reversibility of impacts related to surface water quality that are reasonably expected to occur.
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Potential impacts to the Common Tern breeding location at Interstate Island
67. The Proposer coordinated with the MDNR to design the habitat restoration to avoid negative impacts to the Common Tern nesting at Interstate Island; the design incorporates a Predation Buffer Zone for new features permanently constructed above the low water datum (601.1 feet) during non-ice covered months. a. The design is intended to maintain a quarter mile buffer distance from Interstate Island to any created island feature. Any water features above this datum are located outside a quarter mile radius on another permanent land feature. b. The only Project feature that is planned to be above the low water datum is the peninsula that juts out from the shoreline on the northwest shoreline; the peninsula is intended to create increased natural shoreline to helps reduce runoff and pollutants to the water bodies, along with providing important habitat corridors for plants and animals. c. The Project peninsula is more than a quarter mile away from Interstate Island, making it a long distance for a predator to swim. d. All other Project features are below the low water datum and therefore are not resting points (islands) for predators to use to reach Interstate Island.
68. In 2014, the MDNR suggested a minimum construction boundary of 200 meters from the Interstate Island sanctuary that would reduce predation opportunities on nesting habitats. In addition, proposed features closest to the defined limits were designed as under water shoals, eliminating risks of constructed habitat as a vector for predators.
69. Because the MPCA does not expect significant impacts to the breeding site, the MPCA finds that reversibility is not an issue.
70. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to the Common Tern breeding location at Interstate Island that are reasonably expected to occur from the Project. The Proposer has developed measures to prevent or mitigate these impacts. Construction limitations provided by the MDNR were incorporated into the proposed design to set conservative distances from Interstate Island so new construction will not impact nesting habitat.
71. The MPCA finds that the Project, as it is proposed, does not have the potential for significant adverse environmental effects based on the type, extent, and reversibility of impacts related to the Common Tern breeding location that are reasonably expected to occur.
The feasibility of removing BUIs
72. The SLRAOC RAP addresses impairments by restoring shallow sheltered bays that provide for aquatic life and improve the overall health of the Project area. The proposed design converts large expanses of estuary flats (with an average depth that does not support abundant plant growth) into a more uneven habitat with a variety of depth contours. By constructing features that are shallow and uneven, the Project will reduce wind exposure and wave energy. Sheltered conditions
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improve the ability to establish and create habitat with more diverse benthic macroinvertebrate communities, abundant aquatic vegetation, and fish nursery habitat.
73. The MPCA expects significant gains in habitat improvement over the minor adverse impacts that may occur during restoration operations. The estuary has seen approximately 3,400 acres of adverse impacts to its habitat in the past several hundred years. This 350 acre effort (the Project) is part of the AOC’s goal to restore 1,700 acres of habitat to remove a BUI related to fish and wildlife habitat impairments.
74. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts and demonstrate the feasibility of the plan for removal of the BUIs.
75. The MPCA finds that the Project, as it is proposed, does not have the potential for significant adverse environmental effects based on the type, extent, and reversibility of impacts related to the feasibility of removing BUIs that are reasonably expected to occur.
Concerns whether the Project will support target species such as wild rice
76. There are no established wild rice beds in the Project area.
77. The MDNR has not designated the Project site as a candidate for wild rice restoration. Therefore, the Proposer did not include wild rice restoration in the design criteria for the habitat restoration plan.
78. Because there are no established wild rice beds in the Project area and creation of new wild rice beds were not included in the MDNR wild rice restoration design plans, the MPCA finds there are no impacts that are reasonably expected to occur from the Project on wild rice beds.
Potential impacts to shorelands
79. The Project involves in-water construction along existing shorelines where the Proposer has found impairments near shore communities. The Proposer will construct in-water features that are designed to establish productive littoral zones by creating shoals and islands that reduce wind and wave energy, and enhance the productivity of the aquatic resources along the Project’s shorelines.
80. The Project will enhance habitat connection from water to land by creating a change in water depths, making it easier for species to move between the two environments. Rather than result in negative impacts to shoreland, the Project is design to achieve the opposite by creating additional and more varied shoreland that will enhance habitat and increase recreational opportunities.
81. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to shorelands that are reasonably expected to occur from the Project.
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82. The MPCA finds that the Project, as it is proposed, does not have the potential for significant adverse environmental effects based on the type, extent, and reversibility of impacts related to shorelands that are reasonably expected to occur.
Potential impacts to wetlands
83. Wetlands are defined as lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface. All the work proposed for the Project is in the aquatic system. This Project intends to restore former wetlands that occurred in water depths of one to five feet.
84. The Proposer is preparing a wetland delineation as part of the permit process, but MPCA expects the Project is exempt because it will restore former wetlands. The Project does not include any dredging or filling of existing wetlands, only the restoration of former wetlands. Any existing wetlands will either be avoided or improved. The Proposer will survey the Project site for wetlands near the Project work area to identify any potential wetland alterations and to verify exemption from the wetland delineation permit regulation.
85. If it appears there are potential impacts to wetlands other than the planned restoration of former wetlands, then the Proposer will modify the Project to protect those areas during construction.
86. The RAP calls for a post-construction monitoring effort that is estuary-wide, concentrating on the fish and wildlife habitat priority restoration sites listed under RAP action steps 9.01 through 9.10. The sites that will be monitored include all of the RAP aquatic habitat restoration projects as well as least-impaired reference sites.
87. The Proposer will sample all the restoration sites using methods consistent with the current pre- construction monitoring plan. This will allow the Proposer to compare Project sites before and after restoration to help document success.
88. The MPCA does not anticipate that any potentially significant adverse impacts to wetlands are reasonably expected to occur from the Project. If any such impacts occur, they are reversible, since one of the Project’s goals is to restore wetlands.
89. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to wetlands that are reasonably expected to occur from the Project.
90. The MPCA finds that the Project, as it is proposed, does not have the potential for significant adverse environmental effects based on the type, extent, and reversibility of impacts related to wetlands that are reasonably expected to occur.
Cumulative Potential Effects
91. The second criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects is the “cumulative potential effects.” In making this
13 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
determination, the MPCA must consider “whether the cumulative potential effect is significant; whether the contribution from the project is significant when viewed in connection with other contributions to the cumulative potential effect; the degree to which the project complies with
approved mitigation measures specifically designed to address the cumulative potential effects; and the efforts of the proposer to minimize the contributions from the project” (Minn. R. 4410.1700 subp.7.b.).
The MPCA findings with respect to this criterion are set forth below.
92. The Pilot, EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to result in significant negative cumulative potential environmental effects.
93. The MPCA expects that other proposed SLRAOC aquatic habitat restoration projects (i.e., 40th Avenue West, Grassy Point, Kingsbury Bay) that lie upstream of the Project will have similar positive environmental effects as the Project. The cumulative positive effects of these projects will include various benefits of restoration, including providing optimum bathymetry for aquatic vegetation enhancement, increasing benthic communities, restoring riparian connectivity, and softening shorelines. In combination, these projects provide harbor-wide improvements in habitat, sediment quality, and aesthetics.
94. The MPCA further expects that the cumulative effects associated with the dredging and placement of materials from these related projects will have a positive effect on the St. Louis River and will move the SLRAOC toward the goal of delisting by 2025.
95. The EAW evaluated the cumulative potential effects for the Project on: · surface water quality · floodway
Surface water quality
96. The St. Louis River is listed as impaired on the proposed 2014 MPCA Inventory of All Impaired Waters. It is listed as impaired for dichlorodiphenyltrichloroethane (“DDT”), dieldrin, dioxin, mercury, polychlorinated biphenyls (“PCBs”), and toxaphene. In addition, mercury and PCBs were detected in fish tissue.
97. The 401 Water Quality Certification, the Section 404 CWA permit, the Section 10 Rivers and Harbors Act Permit, and the Public Waters Work Permit required for the Project provide the framework and set the limitations for Project construction, such as listing BMPs required for dredging and in-water placement of materials.
98. Since the potential negative effects of the Project on water quality are addressed through the certifications, permits and approvals, the MPCA does not anticipate the Project will contribute to any potential adverse effect on surface water quality.
14 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
99. The placement of the dredged material by the Proposer will result in a temporary increase in turbidity within the work area of the Project site. However, the Proposer will use BMPs during dredged material placement to ensure the Project complies with state and federal water quality regulations and will continue to implement options to ensure sufficient BMPs are used to minimize the Project’s short-term turbidity impacts. The MPCA does not expect the Project to contribute to long term adverse impacts from turbidity.
100. For these reasons, the MPCA does not expect the Project to contribute significantly to adverse cumulative potential effects on surface water quality. The MPCA finds that the Project does not have the potential for significant negative cumulative potential effects. The EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to result in significant negative cumulative potential environmental effects.
101. The MPCA finds that information presented in the EAW and other information in the environmental review record are adequate to assess potential impacts to surface water quality that are reasonably expected to occur from the Project. The MPCA has developed measures to prevent or mitigate these impacts.
102. The MPCA finds that the Project, as it is proposed, does not have the potential for significant negative environmental effects based on the potential cumulative effect of the Project.
Cumulative potential effects on the floodway
103. In October 2015, the city of Duluth made a determination that no impact to the flood plain would result from the Project. The City will make a determination regarding the two subsequent pending projects (40th Avenue and Grassy Point) within the SLRAOC.
104. The Project, 40th Avenue West, and Grassy Point are within the effective mapped floodplain for the St. Louis River and estuary on the City’s Flood Insurance Rate Map.
105. The Project areas are located in the part of the floodplain where the effective water surface elevation published by Federal Emergency Management Agency is 605 feet (NGVD 29). The effective water surface elevations in this area of the floodplain are controlled by backwater from Lake Superior.
106. Because water surface elevations in this area are controlled by the elevation of Lake Superior, the placement of dredge material for the Project will not increase water surface elevations of the floodplain. The dredge material placement will not impact mapped floodplains further upstream in portions of the St. Louis River.
107. The quantity of placed dredge material for the Project comes from existing riverine and estuary bottom that already is included in the limits of the floodplain; therefore, the placement of this same material in the proposed Project locations will not impact the St. Louis River floodway.
The MPCA makes the following overall Findings on cumulative potential effects.
15 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
108. The MPCA determines that the Project does not have the potential for significant negative cumulative potential effects. The EAW, public comments, and MPCA follow-up evaluation did not disclose any related or anticipated future projects that may interact with this Project in such a way as to result in significant negative cumulative potential environmental effects. 109. The MPCA has determined that the Project and subsequent projects in the SLRAOC have the potential for significant positive cumulative potential effects. The cumulative aquatic habitat benefits from implementation of these projects, especially when considering other restorations in the SLRAOC, will significantly enhance the St. Louis River ecosystem including increased quantity, quality, and diversity of aquatic habitat, increased habitat connectivity, improved water quality, and improved aesthetics and recreation.
The Extent to Which the Environmental Effects Are Subject to Mitigation by Ongoing Public Regulatory Authority
110. The third criterion that the MPCA must consider when determining if a project has the potential for significant environmental effects is "the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority. The RGU may rely only on mitigation measures that are specific and that can be reasonably expected to effectively mitigate the identified environmental impacts of the project." Minn. R. 4410.1700, subp. 7.C. The MPCA findings with respect to this criterion are set forth below.
111. The Proposer will obtain the following permits or approvals for the Project:
Unit of Government Permit or Approval Required MPCA MPCA NPDES/SDS General Construction Stormwater Permit 401 Water Quality Certification Corps Section 404 Clean Water Act Permit Section 10 Rivers and Harbors Act Permit MDNR Public Waters Work Permit Lake Superior Coastal Zone federal consistency review Prohibitive Invasive Species Permit Minnesota Historical Society Section 106 concurrence letter National Oceanic and Atmospheric Section 7 review/coordination Administration City of Duluth Temporary Access Agreement/License Erosion and Sediment Control Permit Floodplains, Shore lands, and Wetlands Setbacks/Restrictions Wetlands Conservation Act (WCA) Permit
112. MPCA NPDES/SDS Construction Stormwater General Permit. A General National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) Construction Stormwater Permit is required when a project disturbs one or more acres of land. The Proposer may be required to obtain a NPDES/SDS if it is necessary to construct temporary structures at the Project site such as
16 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
mooring facilities, dolphins (a pile, cluster of piles, or buoy to which a vessel may be moored in open water), turnarounds, work and storage areas, access roads, and office facilities that exceed one or more acres of land.
These types of construction aids are within Project site boundaries or rights-of-way and the Proposer must remove them when no longer needed. The Proposer must also restore temporary sites to their original condition, using accepted standard practices for site restoration upon completion of activities. The Proposer will use BMPs such as silt fences, bale checks, and prompt revegetation to prevent sediment from leaving the construction site.
If a NPDES/SDS permit is necessary, the Proposer must have a Stormwater Pollution Prevention Plan that will provide more detail as to the BMPs to be implemented and will also address: phased construction; vehicle tracking of sediment; inspection of erosion control measures implemented; and timeframes in which erosion control measures will be implemented. The general permit also requires adequate stormwater treatment capacity to assure that water quality is not impacted by runoff once the Project is constructed.
113. 401 Water Quality Certification. The Project is subject to the review requirements of the MPCA’s Water Quality Certification for the Corps Section 404 Wetlands and Section 10 (Rivers and Harbors) Permits.
114. Section 404 Clean Water Act Permit. This general permit requires the Proposer to follow specified procedures for excavation in wetlands and placement of excavated materials into the waters of the U.S. or their associated wetlands.
115. Section 10 Rivers and Harbors Act Permit. Section 10 of the Rivers and Harbors Act of 1899 requires the Corps approval prior to any work in, over, or under navigable waters of the United States, or which affects the course, location, condition or capacity of such waters. Typical activities requiring Section 10 permits include: construction of intake structures, cable or pipeline crossings; work such as dredging or disposal of dredged material; and excavation, filling, or other modifications to navigable waters of the U.S.
116. MDNR Public Waters Work Permit. The Public Waters Work Permit Program regulates activities that change or diminish the course, current or cross section of public waters within the state, by any means, including filling, excavating, or placing materials in or on the beds of public waters.
117. Lake Superior Coastal Zone federal consistency review. Federal consistency requires that all federal actions which are reasonably likely to affect any land or water use or natural resources of Minnesota’s Lake Superior coastal area must be consistent with the enforceable policies of Minnesota’s Lake Superior Coastal Program. The MDNR conducts this review and issues a letter when its review is completed.
118. MDNR Prohibitive Invasive Species Permit. This MDNR permit regulates the possession, import, purchase, transport, or introduction of invasive species for purposes of disposal, control, research or education.
17 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
119. Minnesota Historical Society Section 106 concurrent letter. The Minnesota Historical Society reviews the information for a project to determine whether or not the project site is listed in the National or State Registers of Historic Places, and whether or not there are any known or suspected
archaeological properties in the area affected by a project. The Historical Society issues its determination letter under the Minnesota Historic Sites Act and the Minnesota Field Archaeology Act.
120. National Oceanic and Atmospheric Administration Section 7 review/coordination. Section 7 of the Endangered Species Act (“ESA”) requires Federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA, or destroy or adversely modify designated critical habitat of any listed species (http://www.fpir.noaa.gov/PRD/prd_esa_section_7.html).
121. City of Duluth Temporary Access Agreement/License. This is a formal document that legally defines the scope and schedule of construction equipment access and passage across specified city of Duluth parcels. It protects both the city of Duluth and the contractor in case of accident or injury such as from the distribution of construction materials and/or equipment and equipment operation during Project construction.
122. Erosion and Sediment Control Permit. The city of Duluth requires this permit for any activity disturbing more than 3,000 square feet. The intent of the permit is to recognize that actively worked, exposed soils are a potential source of significant soil erosion and sediment pollution, and this permit specifies a plan to minimize the site’s impact and threat to receiving waters.
123. Floodplains, Shorelands, and Wetlands Setbacks/Restrictions. The city of Duluth reviews any construction activity for impacts to wetlands. The city of Duluth has specific restrictions within the shoreland zones of Lake Superior, the St. Louis River, and cold-water trout streams. The city of Duluth reviews these setbacks/restrictions for each project. The city of Duluth also reviews any construction activity within a mapped floodplain to ensure that the project does not increase the flood potential for that site and adjacent areas.
124. Wetlands Conservation Act (WCA) Permit. The city of Duluth issues a WCA permit for any project that has the potential to impact wetlands. The city of Duluth’s WCA permit requires the proposer to first avoid, then minimize, and finally replace any impacted wetland with another wetland of equal or greater value.
125. The above-listed regulatory approvals include general and specific requirements for mitigation of environmental effects of the Project. The MPCA finds that any adverse environmental effects of the Project are subject to mitigation by ongoing public regulatory authority.
The Extent to Which Environmental Effects can be Anticipated and Controlled as a Result of Other Available Environmental Studies Undertaken by Public Agencies or the Project Proposer, Including Other EISs
126. The fourth criterion that the MPCA must consider is “the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by
18 On the Need for an Environmental Impact Statement Findings of Fact 21st Avenue West Aquatic Habitat Restoration Project Conclusions of Law Duluth, St. Louis County And Order
public agencies or the project proposer, including other EISs,” Minn. R. 4410.1700, subp. 7. D. The MPCA findings with respect to this criterion are set forth below.
127. MPCA staff reviewed the following documents as part of the environmental impact analysis for the Project: · data presented in the EAW · reports and studies referenced in the EAW · the Pilot
128. This list is not intended to be exhaustive. The MPCA also relies on information provided by the Project Proposer, persons commenting on the EAW, staff experience, and other available information obtained by staff.
129. The environmental effects of the Project have been addressed by the design and permit development processes, and by ensuring conformance with regional and local plans. There are no elements of the Project that pose the potential for significant adverse environmental effects. Rather, the Project will create and restore aquatic habitats, help support an ecological transition for wildlife, provide low impact access to the estuary, and increase recreation opportunities for citizens. Based on the environmental review, previous environmental studies by public agencies or the Project Proposer, and staff expertise and experience on similar projects, the MPCA finds that the environmental effects of the Project that are reasonably expected to occur can be anticipated and controlled.
130. The MPCA adopts the rationale stated in the attached Response to Comments (Appendix A) as the basis for response to any issues not specifically addressed in these Findings.
CONCLUSIONS OF LAW
131. The MPCA is the governmental unit responsible for determining the need for an EIS for this Project.
132. The EAW, the permit development process, and the evidence in the record are adequate to support a reasoned decision regarding the potential for significant environmental effects that are reasonably expected to occur from this Project.
133. Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigation measures have been incorporated into the Project design and regulatory approvals. The Project is expected to comply with all federal, state, and local standards and rules.
134. Based on a comparison of the impacts that are reasonably expected to occur from the Project with the criteria established in Minn. R. 4410.1700 subp. 7, the Project does not have the potential for significant adverse environmental effects.
135. Based on the record, the MPCA makes a negative declaration on the need for an EIS for the Project.
19
APPENDIX A
Minnesota Pollution Control Agency (MPCA)
21st Avenue West Aquatic Habitat Restoration Project (Project) Environmental Assessment Worksheet (EAW)
LIST OF COMMENT LETTERS RECEIVED
1. Tracey Ledder, Lake Superior National Estuarine Research Reserve System (NERRS). Email received October 1, 2015.
2. Annie Bracey, University of Minnesota Center for Water and the Environment. Letter received October 28, 2015.
3. Rian Reed, Minnesota Department of Natural Resources (MDNR). Email and letter attachment received October 28, 2015.
4. Deborah DeLuca, Duluth Port Authority. Email received October 28, 2015.
RESPONSES TO COMMENTS ON THE EAW
1. Tracey Ledder, Lake Superior National Estuarine Research Reserve System (NERRS). Email received October 1, 2015.
Comment 1-1: The NERRS stated that if any data was downloaded from the NERRS’ Central Data Management Office, it should have included a metadata document which includes information on the equipment, procedures, etc. The NERRS also requested including the manner of referencing the data set.
Response: The MPCA has made note of the comments provided by the NERRS.
2. Annie Bracey, University of Minnesota Center for Water and the Environment. Letter received October 28, 2015.
Comment 2-1: The commenter stated that she believes the creation of islands near Interstate Island may negatively impact Common Terns by providing additional habitat for nuisance species already abundant in the area. Further, the commenter believes that the creation of islands between Interstate Island and the shoreline may provide easier access for predators.
Response: The Proposer worked with the MDNR to design the habitat restoration so it does not negatively impact Common Tern nesting at Interstate Island. The U.S. Army Corps of Engineers (USACE) prepared a final design report, which incorporates a Predation Buffer Zone on any new features permanently constructed above the low water datum (601.1 feet) during non-ice covered months; any above water features are located outside a 0.25 mile radius of another permanent land feature. The Proposer is taking additional precautions near Interstate Island to prevent predation of the bird population from mainland predators. The figure provided in the EAW shows features near Interstate Island; however, all the dredge material is placed below the low water datum. 21st Avenue West Aquatic Habitat Restoration Project Responses to Comments on the Duluth, St. Louis County, Minnesota Environmental Assessment Worksheet
Comment 2-2: The commenter stated that although the Project may not interfere directly with recognized habitat for the Piping Plover, the addition of new islands would likely be unsuitable for colonization of this species because of the high populations of ring-billed gulls and Canadian geese.
Response: There is a peninsula adjacent to the shoreline along the Highway 53 corridor that is intended to create increased natural shoreline for riparian connectivity. This is more than 0.25 miles from Interstate Island and was approved by the MDNR involved with Interstate Island’s habitat maintenance.
Comment 2-3: The commenter felt that including Interstate Island in the proposed restoration of the Project area would be more effective than creating new islands close to it, and that Interstate Island would benefit significantly from potential expansion and/or fortification.
Response: The Proposer does not intend to create new islands near Interstate Island as discussed above. Interstate Island itself was not included in the plan for this Area of Concern (AOC) as the Project focuses on aquatic habitat restoration. That said, the MDNR recently did some improvements to the island for Common Tern nesting habitat and understand there is need to further this work down the road.
3. Rian Reed, Minnesota Department of Natural Resources (MDNR). Email and letter attachment received October 28, 2015.
Comment 3-1: The commenter asked that the scope of the Pilot Project be described as compared to the proposed Project, and how the results of the Pilot Project will affect the implementation of the Project.
Response: From 2013 to November 2015, the MPCA, MDNR and the USACE started a three-year Pilot Project at the Project site. For the Pilot Project, the USACE placed approximately 350,000 cubic yards of dredged material at four locations in the Pilot Project area. Sites in the Pilot Project area included open flats out from the Western Lake Superior Sanitary District (WLSSD) and adjacent to the federal North Navigational Channel and softening shoreline by creating gentle slopes to deeper water along Interstate 535 (I-535). The Pilot Project was intended to evaluate the physical, chemical, and bioaccumulative response of in-water placement of dredge material, whether placement of this material led to aquatic habitat restoration, and which best management practices would reduce turbidity during the placement of fill. The monitoring results of the dredge material and the placement of dredge material are consistent with the desired condition of establishing aquatic habitat. The results of the Pilot Project have been reviewed, cited in the Project EAW, and used to inform subsequent construction designed to complete the restoration design objectives (c.f., Johnson 2012, Barr 2013, LimnoTech 2014).
Comment 3-2: The commenter stated that the MPCA should consider the cumulative potential effects on the floodway since approximately two million cubic yards of dredged material will be introduced into the estuary from the Project and the two future projects which include 40th Avenue West and Grassy Point. The commenter requested that the Minnesota “No Rise” certification form is needed to confirm no impact to floodplains will occur from the Project.
Response: The MPCA has received approval through a city of Duluth determination that no impact to the flood plain would result from the Project. The project areas that are being proposed (the Project, including the Pilot Project; 40th Avenue West; and, Grassy Point) are within the effective mapped
2 21st Avenue West Aquatic Habitat Restoration Project Responses to Comments on the Duluth, St. Louis County, Minnesota Environmental Assessment Worksheet
floodplain for the St. Louis River and estuary. Please reference Flood Insurance Rate Map City of Duluth, MN St. Louis County Panel Number: 270421 0040 D (Revised November 4, 1992). The project areas are located in the floodplain where the effective water surface elevation is 605 ft (NGVD 29). The effective water surface elevations published by FEMA in this area of the floodplain are controlled by backwater from Lake Superior. (FIS City of Duluth, Minnesota, St. Louis County, August 1979). The proposed placement of dredge material for the project will not increase water surface elevations of the floodplain because they are controlled by the water surface elevation of Lake Superior. The placement will not impact mapped floodplains further upstream in portions of the St. Louis River. The quantity of material being placed is coming from existing riverine and estuary bottom that defines the limits of the floodplain, the placement of this same material in the proposed locations will not impact available conveyance of the St. Louis River.
The MPCA makes note of the comments provided by the MDNR, and will complete the Minnesota “No Rise” certification form and submit it to the MDNR.
Comment 3-3: The commenter asked the MPCA to analyze the Project in terms of how it will overcome existing legacy issues affecting the area, including the highway and industrial landscape, urban stormwater runoff, industrial and municipal discharges, and latent water pollution. The commenter also asked that with these conditions, is the beneficial use impairment removal feasible and will target species such as wild rice be supported.
Response: Degradation of this Project area is due to legacy issues, including industrialization, urbanization, urban stormwater runoff, industrial and municipal discharges, and latent water pollution. The overall strategy of the St. Louis River (SLR) AOC Remedial Action Plan is to address legacy and more recent issues by restoring shallow sheltered bays that provide for aquatic life and improve the overall health of the area with more diverse benthic macroinvertebrate communities, abundant aquatic vegetation, and a productive fishery.
As a result of industry’s impact, there are large areas in the industrial harbor where average water depths are greater than what is natural in a healthy, estuary system. A combination of fetch (the greatest extent across a body of water without impediments to reduce wave action) and excessive depths create conditions that generate wave energies that limit the anchoring ability of most aquatic plants, minimizing growth of aquatic plants and reducing habitat and refuge for aquatic insects and fish.
The placed dredged material will provide a suitable substrate for creating aquatic habitat features consistent with the restoration design. The Project’s design plans and specifications were completed by observing or modeling metrics for existing aquatic vegetation assemblages, benthic community structure, and other physical/chemical sediment characteristics, and comparing them to a restored condition. The Proposer may need to augment aquatic vegetation growth by providing an organic material layer, planting propagules, revising or altering placement locations, and/or modifying shallow water characteristics. These adaptive management techniques are applied as necessary based on monitoring results and supplemental study results that become available after site restorations in the SLRAOC are complete.
The Project EAW cited reports that summarized the legacy sediment characterized in the SLR estuary (LimnoTech 2013), the correlation between contaminants and biological condition specific to the Project (LimnoTech 2014), and how criteria used during the design approach were used to meet beneficial use
3 21st Avenue West Aquatic Habitat Restoration Project Responses to Comments on the Duluth, St. Louis County, Minnesota Environmental Assessment Worksheet
impairment objectives (MPCA and MDNR 2015). A MDNR report was also consulted while drafting the Project EAW and used to determine that wild rice was not an effective design criteria (MDNR 2014. St. Louis River Estuary Wild Rice Restoration Implementation plan. Division of Ecological and Water Resources. Duluth, Minnesota).
Comment 3-4: The commenter asked that the MPCA describe the proposed development of the shoreland, the potential effects to the shorelands from the Project, and how the MPCA will manage the environmental effects. The commenter asked the MPCA to identify if a shoreland permit is needed for the Project.
Response: The proposed Project involves in-water construction along existing shorelines where near shore communities were determined to be impaired. Constructed in-water features are designed to establish productive littoral zones by creating shoals and islands that reduce wind and wave energy, and enhance the productivity of the existing shorelines. A MDNR guidance document was used to establish the shoreline connectivity criteria that determined how much shoreline within the site required enhancement. Establish goals for the Project were incorporated into the habitat features described in the Project EAW application (MDNR, in prep.). The future management of restored habitat acres within the St. Louis River estuary is facilitated through the MDNR.
Comment 3-5: The commenter asked how the MPCA will monitor the wetland creation for success, and to provide future survey results to the Board of Soil and Water Conservation and/or the MDNR.
Response: A post-construction monitoring effort for the Project is listed as action step 4.01 of the Remedial Action Plan cited in the Project EAW (MPCA and WDNR 2013). A post-construction monitoring design plan is estuary-wide, concentrating on priority restoration sites, such as the Project, 40th Avenue West, Grassy Point, etc., as well as least-impaired reference sites. The Proposer will monitor all sample locations using methods consistent with the current pre-construction monitoring plan. The MPCA will provide future survey results to the Board of Soil and Water Conservation and the MDNR.
Comment 3-6: The commenter stated concerns about creating a predator bridge to Interstate Island and thereby jeopardizing the viability of the Common Tern population.
Response: The Proposer worked with the MDNR to design the habitat restoration so it does not negatively impact Common Tern nesting at Interstate Island. The USACE prepared a final design report, which incorporates a Predation Buffer Zone on any new features permanently constructed above the low water datum (601.1 feet) during non-ice covered months; any above water features are located outside a 0.25 mile radius of another permanent land feature. The Proposer is taking additional precautions near Interstate Island to prevent predation of the bird population from mainland predators. The figure provided in the EAW shows features near Interstate Island; however, all the dredge material is placed below the low water datum.
Comment 3-7: The commenter stated the MDNR Natural Heritage Review indicated the presence of eastern elliptio (Elliptio complanata) and creek heelsplitter (Lasmigona compressa). The commenter was not requesting a mussel survey; however, the commenter requested information about resident mussels (including invasive mussels) identified during past surveys in the Project area.
4 21st Avenue West Aquatic Habitat Restoration Project Responses to Comments on the Duluth, St. Louis County, Minnesota Environmental Assessment Worksheet
Response: The MPCA has made note of this comment, and will provide results of the past surveys in the Project area to the MDNR.
4. Deborah DeLuca, Duluth Seaway Port Authority. Email received October 28, 2015.
Comment 4-1: The commenter complimented the MPCA on the high quality of the EAW document, and stated that they appreciated the collaborative nature of the work between the MPCA and other agencies. The commenter had no suggested changes or adjustments to the document or the Project.
Response: The MPCA appreciates and makes note of the comments provided by the Duluth Seaway Port Authority.
5 1 From: Ledder, Tracey [mailto:[email protected]] Sent: Thursday, October 01, 2015 3:29 PM To: Tegdesch, Elizabeth (MPCA) Subject: RE: 21st Avenue West Aquatic Habitat Restoration Project Environmental Assessment Worksheet
Hi Elizabeth, I noticed the Lake Superior NERR data mentioned in the references for the worksheet. If any data was downloaded from our Central Data Management Office, it should have included a metadata document which included information on the equipment, procedures, etc. Also included is the requested manner of referencing the data set (see below). Please pass this on for use in the relevant documents.
NOAA retains the right to analyze, synthesize and publish summaries of the NERRS System-wide Monitoring Program data. The NERRS retains the right to be fully credited for having collected and process the data. Following academic courtesy standards, the NERR site where the data were collected should be contacted and fully acknowledged in any subsequent publications in which any part of the data are used. The data set enclosed within this package/transmission is only as good as the quality assurance and quality control procedures outlined by the enclosed metadata reporting statement. The user bears all responsibility for its subsequent use/misuse in any further analyses or comparisons. The Federal government does not assume liability to the Recipient or third persons, nor will the Federal government reimburse or indemnify the Recipient for its liability due to any losses resulting in any way from the use of this data.
Requested citation format: Lake Superior NERR, National Estuarine Research Reserve System (NERRS). 2015. System-wide Monitoring Program. Data accessed from the NOAA NERRS Centralized Data Management Office website: www.nerrsdata.org; accessed month/day/year.
NERR water quality data and metadata can be obtained from the Research Coordinator at the individual NERR site (please see Principal Investigators and Contact Persons), from the Data Manager at the Centralized Data Management Office (please see personnel directory under the general information link on the CDMO home page) and online at the CDMO home page www.nerrsdata.org. Data are available in comma delimited format.
Tracey Ledder Lake Superior NERR Monitoring Coordinator 715-392-3141
Are you part of the Solution or part of the Precipitate?
From: Tegdesch, Elizabeth (MPCA) [mailto:[email protected]] Sent: Friday, September 25, 2015 1:49 PM Subject: 21st Avenue West Aquatic Habitat Restoration Project Environmental Assessment Worksheet
The file is too large to send. To view the EAW, please click on the link below.
http://www.pca.state.mn.us/index.php/topics/environmental-review/environmental-assessment-worksheets-and- environmental-impact-statements.html
Thank you.
Elizabeth Tegdesch Environmental Review and EQB Support Minnesota Pollution Control Agency 520 Lafayette Road N St. Paul, MN 55155 / 651-757-2100 [email protected] 2 3 4
From: Deborah DeLuca To: Card, Dan (MPCA) Cc: Jensen, Patrice (MPCA); Breneman, Dan (MPCA); Jim Sharrow Subject: 21st Avenue West Aquaitc Habitat Restoration Project - Duluth seaway Port Authority Comments Date: Wednesday, October 28, 2015 4:14:32 PM
Hello Dan C, Patrice and Dan B,
Thank you for this opportunity to comment on the Environmental Assessment Worksheet for the 21st Avenue West Aquatic Habitat Restoration Project. We wanted to take the opportunity to compliment the MPCA on the high quality of the EAW document and the thorough description of the context for the project. We have no suggested changes or adjustments to the document or project.
We appreciate the highly collaborative nature of the work between the MPCA and other agencies that has resulted in the success of the 3 year pilot project at the 21st Avenue West site and we are excited about project and associated methodology as a model for other areas within the SLR AOC. We feel that this work will lead to BUI delisting and eventual AOC delisting. The proposed assessment and monitoring of the resultant habitat enhancements will provide the metrics needed to demonstrate successful habitat restoration and will have implications beyond the delisting process for future enhancement projects.
Sincerely, Jim Sharrow and Deb DeLuca
Deborah DeLuca Government & Environmental Affairs Director Duluth Seaway Port Authority 1200 Port Terminal Drive Duluth, MN 55802 Office: (218) 727-8525 Mobile: (218) 721-6349 [email protected] http://www.duluthport.com/
Jim Sharrow Director of Port Planning & Resiliency Duluth Seaway Port Authority w: (218)727-8525 c: (218)390-6975 [email protected]