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. TDD (for hearing and speech impaired only): 651-282-5332 Printed on recycled paper containing at least 30% fibers from paper recycled by consumers 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 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 2 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 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, 3 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 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.