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Charles A. Uhlarik U.S. Army Corps of Engineers, Detroit District Environmental Analysis Branch Chief 477 Michigan Avenue Detroit, MI 48236-2550

RE: Clean Water Act Section 401 Water Quality Certification for Beach Nourishment Project along the side of Point in Duluth, Minnesota

Dear Charles Uhlarik:

This letter is submitted by the Minnesota Pollution Control Agency (MPCA) under authority of Section 401 of the Clean Water Act (CWA) (33 USC 1251 et seq.), Minn. Stat. chs. 115 and 116, and Minn. R. 7001.1400-7001.1470, 7050, 7052, and 7053. It relates to the U.S. Army Corps of Engineers (USACE), Detroit District’s March 5, 2018, request for a 401 Water Quality Certification (401 Certification) to place, over the next five years, approximately 1,000,000 cubic yards of dredged materials from the Duluth-Superior federal navigational channel along the Lake Superior side of Minnesota Point in Duluth, Minnesota. The project is located in in Section 19, Township 49 North, Range 13 West, City of Duluth in St. Louis County, Minnesota.

Applicable Water Quality Standards and Existing Impairments The portion of Lake Superior where the dredged materials will be placed is classified as a Class 1B (domestic consumption), 2A (aquatic life and recreation), 3A (industrial consumption), 4 (agriculture and wildlife), 5 (aesthetic enjoyment and navigation), and 6 (other uses and protection of border waters) water. Minn. R. 7050.0220 through 7050.0226, and Minn. R. 7052.0100 identify the specific water quality standards governing each of these designated use classifications. In addition, the narrative standards described in Minn. R. 7050.0210 apply, as well as the antidegradation water quality standards in Minn. R. 7050.0265 and Minn. R. 7052.0300. Because this portion of Lake Superior is also classified as a Restricted Outstanding Resource Value Water (ORVW), it receives additional protections under the antidegradation standards pertaining to the specific qualities for which the waters were originally designated ORVWs.

Lake Superior is an MPCA CWA 303(d)-listed impaired water, meaning it does not currently meet the applicable state water quality standards for the following parameters: PCB and mercury in fish tissue. In addition, the proposed project is within the St. Louis River Area of Concern (SLRAOC), one of 43 locations throughout the area where certain beneficial uses are listed as impaired as described in the Great Lakes Water Quality Agreement (1987).1

1 The Great Lakes Water Quality Agreement is a commitment between the United States and Canada to restore and protect the waters of the Great Lakes. The Agreement provides a framework for identifying binational priorities and implementing actions that improve water quality.

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Project Description As described in the application and associated materials, the USACE proposes to place, over the next five years, approximately 1,000,000 cubic yards of material dredged from the St. Louis River federal navigation channel along the Lake Superior side of Minnesota Point (see attached Figure 1). The dredged material will be placed between the ordinary high water level (OHWL) and the most landward 4 foot depth contour between the outer concrete breakwater of the Superior Entry and the . The overall goal of the project, described in the associated 1998 federal Environmental Assessment, for which USACE issued a Findings of No Significant Impact on January 24, 2000, is to restore the beach in eroded areas along Minnesota Point and to diminish further erosion along this coastline.

The dredged materials placement activities, expected to begin in June 2019, will continue annually through the 2023 construction seasons or until the specified volume of material has been placed. Material will be either mechanically or hydraulically dredged from the federal navigational channel, and either mechanically or hydraulically placed into the project site. When mechanically dredging, material will be placed on a barge and transported to the project site. Material that is mechanically dredged and hydraulically placed will be placed into a dredged material transfer structure, mixed with water to create a slurry, and hydraulically pumped to the placement location. Further, the USACE or contractor acting on its behalf may seek authorization to place a pipe (or pipes) across Minnesota Point for the purpose of hydraulically placing dredged material from the dredged material transfer structure located in into the project area. Material will be placed between the OHWL and the most landward 4 foot depth contour. Heavy equipment, such as a bulldozer may be used to evenly distribute the dredged material in the placement area.

In December 2018, the USACE identified that the first year (2019) of the five-year beach nourishment activities will occur near the Superior Entry and extend northwest approximately 3,000 linear feet along Minnesota Point as shown in Figure 2. Preliminary analysis of the 2018 samples taken from areas that will be dredged in 2019 demonstrate that contaminants (e.g., furan and dioxin) in the sediment would not cause excessive risk to either aquatic life or human health uses if used as beach nourishment. The sediment samples are being further analyzed at the time this draft 401 Certification has been prepared. As noted below, USACE must acquire subsequent MPCA authorizations prior to placing dredged material into the project area.

Decision The MPCA proposes to certify the referenced project and has preliminarily determined that it will satisfy the antidegradation standards in Minn. R. parts 7050.0265 and 7052.0300. The MPCA has examined the application and other information furnished by the applicant, including the antidegradation assessment information required under Minn. R. parts 7050.0265 and 70502.0300, and bases its certification decision upon this and other information relevant to water quality considerations. The MPCA finds that there is reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards, provided the following conditions are complied with:

1. The USACE and its contractor must use appropriate best management practices (BMPs) in order to ensure dredged material placement activities at the project site will not, to the extent practicable, exceed state water quality standards (e.g., the total suspended solids standard of 10 mg/L and the total mercury standard of 1.3 ng/L) outside of the project area. At the time of this preliminary certification determination, the specific BMPs proposed for each year of the of the

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project’s 5-year placement activities have not been determined. However, a list of potential BMPs is included below. The USACE may propose these BMPs, or others, to the MPCA.

· Turbidity/Silt Curtain: Where appropriate and likely to be effective, the USACE and its contractor may install a turbidity/silt curtain (conforming to at least a US DOT Type II) before commencing any dredged material placement activities. Installation of the curtain must enclose all placement areas to the extent practicable and remain installed during dredged material placement activities.

· Horizontal Discharge Pipe with Baffle Plate: When appropriate, the USACE and its contractor may place dredged materials hydraulically at the water’s surface and at or below the OHWL. As material is hydraulically placed, it will build up in elevation and the contractor will distribute material evenly above the water surface. At times, material may temporarily exceed the OHWL but will be graded to a final elevation at or below the OHWL prior to completion of the placement area. The discharge end of the pipe must be horizontal with a vertical or angled baffle plate installed to reduce energy of the effluent and maximize sediment-settling rates, unless otherwise authorized by the MPCA.

· Mechanical Placement: When appropriate, material must be placed mechanically with a clamshell bucket or a bottom-dumping scow. Dependent on the grain size of the material and on the lakebed, this type of placement can result in substantially less turbidity relative to placing material hydraulically. Mechanical placement is limited to waters with sufficient depth for barge and scow access.

· Daily Visual Inspection: To ensure that the relevant BMPs are deployed and functioning correctly, the USACE and contractor must visually monitor and observe turbidity levels, weather, and wave conditions on days when the contractor is placing dredged material in the project site. Further, the USACE must develop and propose for MPCA approval a meaningful intervention procedure to implement if, during material placement activities, elevated turbidity levels are observed at the water surface outside the project construction areas, or if formal complaints are received by either the USACE or MPCA alleging this to be the case.

The USACE must document the results of the daily inspection activities, including any observations of elevated turbidity levels, in biweekly or monthly construction updates to be provided to the SLRAOC project partners, including the MPCA.

· Minimize Pump Operation: The contractor must only operate the pump transporting dredged material from the offload site to the placement site at full capacity when actively placing material. During idle times when the contractor is waiting for dredged material to arrive at the offload site, the pump will not be left running at full capacity. This will minimize the discharge of water into the beach nourishment project site.

· Apron/Spill Controls: The contractor must use an apron/guard to minimize material spillage into the water while being transferred from the scow to the pump. Contractors must place material that spills onto the apron or onto the edge of the scow back into the

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barges or pump by mechanical means whenever practical. Washing material off the apron or scow must only be done to remove any residual material left behind after mechanical removal to prevent this residual material from creating unsafe working conditions.

2. By no later than March 1 of each year the USACE must submit to the MPCA, in writing and for approval, the BMPs the USACE proposes to implement during that year’s dredged materials placement contract. The USACE must include an explanation regarding how the BMPs will be effective at preventing turbidity from leaving the dredged placement construction area to the extent practicable. The submittal must also identify that year’s beach nourishment project boundaries, the specific areas in the federal navigational channel from which sediment will be dredged, the associated sediment sampling results, and the estimated quantity of sediment to be dredged from each area. The additional information required in condition 7, below must also be included in this submittal.

3. If the MPCA disapproves the proposed BMPs required in condition 2, above, the USACE must, after receiving written communication from the MPCA, revise the proposed BMPs and resubmit them within 15 days. If the USACE needs additional time to revise and resubmit the proposed BMPs, the USACE must inform the MPCA, in writing and within this 15-day period, of the date by which time they will be submitted.

4. The MPCA must approve the proposed BMPs required in condition 2, before the USACE is authorized to place dredged material placement activities in the project area.

5. The USACE must inform the contractor who is awarded the annual dredging contract of the specific BMPs that must be used throughout that respective year’s dredged placement activities. If the USACE determines it is necessary to solicit bids for the annual contract before proposed BMPs are submitted or approved by the MPCA, it is advised that language be inserted into the formal bid solicitation to clearly identify the need for the USACE, and any contractor acting on its behalf, to implement BMPs as approved by the MPCA. This will help avoid a scenario where the contractor awarded the bid may not be aware of the need to implement the specific BMPs.

6. On an annual basis, prior to placing dredged material into the project area and before placing associated dredged material placement equipment on Minnesota Point, the USACE must:

A. Conduct a site visit with Minnesota Department of Natural Resources staff and the USACE contractor, the purpose of which is to identify locations of any endangered, threatened, and special concern species within and near the project, including terrestrial areas above the OHWL where equipment will be placed during any stage of that year’s dredged material placement activities. This includes areas where any pipes or hoses may be placed across Minnesota Point to facilitate hydraulic placement of material from the dredged material transfer structure located in Superior Bay into the project area.

B. Clearly demarcate the locations of any endangered, threatened, and special concern species identified during the site visit using signage, fencing, staking, etc., to prevent unauthorized impacts to these species throughout the duration of that year’s dredged material placement activities.

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Unless otherwise authorized by MDNR, the USACE or contractor acting on its behalf must not disturb the locations of any known endangered, threatened, and special concern species.

7. As part of the annual submittal required in condition 2, above, the USACE must also propose to MPCA for approval a Sediment Monitoring Plan that determines the impact of wave energy and winter storm events on sediment quality in the project area. The purpose of the sediment monitoring is to gain a better understanding of: (a) the length of time the finer-grained sediment remains at the placement site before it is washed away from the beach sand and gravel; (b) the concentration of dibenzo-p-dioxins/dibenzofurans (dioxins) in beach sediment and in sediment at the 2 to 8 foot water depth of Lake Superior immediately outside the project area, both before and after placing any dredged material onto the project site; and (c) the ambient concentration of dioxins in finer grained sediment located off shore from the project area and the Superior entry prior to dredged material placement. At a minimum, the Sediment Monitoring Plan must identify the proposed sediment sampling criteria, including sampling locations, frequency, and duration, together with the parameters that will be analyzed. It must also identify that a report summarizing the result of this evaluation will be prepared and submitted to MPCA.

8. If the MPCA disapproves the proposed Sediment Monitoring Plan required in condition 7, above, the USACE must, after receiving written communication from the MPCA, revise the proposed plan accordingly and resubmit it within 15 days. If the USACE needs additional time to revise and resubmit the plan, USACE must inform the MPCA, in writing and within this 15-day period, of the date by which time it will be submitted.

9. The USACE must allow representatives from MPCA to inspect the project site and authorized activity to ensure that the project is constructed, and BMPs maintained, in accordance with this 401 Certification and subsequent MPCA authorizations related to the project.

10. The USACE is responsible for ensuring that all requirements of this 401 Certification, and all requirements of subsequent MPCA approvals governing the BMPs that must be used during this project’s dredged material placement activities, are met.

11. This certification includes and incorporates by reference the general conditions of Minn. R. 7001.0150, subp. 3.

Disclaimer: This 401 Certification does not release the permittee from obtaining all necessary federal, state, and local permits. It does not limit any other permit where requirements may be more restrictive. It does not eliminate, waive, or vary the permittee’s obligation to comply with all other laws and state water statutes and rules through the construction, installation, and operation of the project. This 401 Certification does not release the permittee from any liability, penalty, or duty imposed by Minnesota or federal statutes, regulations, rules, or local ordinances and it does not convey a property right or an exclusive privilege. This 401 Certification does not authorize impacts to any waters beyond the project area.

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This 401 Certification does not replace or satisfy any environmental review requirements, including those under the Minnesota Environmental Policy Act (MEPA) or the National Environmental Policy Act. In accordance with MEPA, Minn. Stat. § 116D.04, subd. 2b, and related rules, projects that are required to complete an Environmental Assessment Worksheet (EAW) or an Environmental Impact Statement (EIS) may not be started until:

· A petition for an EAW is dismissed. · A negative declaration on the need for an EIS has been made. · An EIS has been determined to be adequate, or · A variance has been granted by the state Environmental Quality Board.

An Environmental Review required by law, for any project, must be complete in order for any state permit or 401 Certification to be valid.

The MPCA reserves the right to modify or revoke this 401 Certification as provided in Minn. R. 7001.0170 and 33 U.S.C. §1341. Pursuant to Minn. R. 7001.1450 and 33 U.S.C. §1341(a)(3), failure to comply with any of the conditions in this 401 Certification may result in the MPCA invalidating or revoking this 401 Certification.

If you have any questions on this 401 Certification, please contact Kevin Molloy of my staff at 651-757-2577.

Sincerely,

Melissa Kuskie Supervisor Certification, Environmental Review & Rules Section Resource Management & Assistance Division

MK/KM:ds

Enclosures cc: Melissa Bosman, USACE, Detroit Dan Breneman, MPCA, Duluth Phil Monson, MPCA, St. Paul Patty Fowler, MDNR, Duluth Cliff Bentley, MDNR, Two Harbors

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Figure 1

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Figure 2