POH-2017-00070

                                                        Public Notice of Application for Permit

Interested parties are hereby notified that an application has been received for a Department of the Army (DA) permit for certain work in waters of the United States (U.S.) as described below and shown on the attached drawings.

APPLICANT: Aaron Y. Poentis, Navy Region Hawaii, 850 Ticonderoga Street, Suite 110, Joint Base Pearl Harbor-Hickam (JBPHH), HI 968620.

AGENT: Navy Facilities Engineering Command Hawaii, 400 Marshal Road, JBPHH, HI 96860.

LOCATION: Dredge Areas: Bravo, Mike, Sierra Wharves and Hotel Piers in the East Loch of Pearl Harbor (Latitude: 21.354° N; Longitude 157.948° W) and the Upper Middle Loch of Pearl Harbor (21.381° N; 157.987° W). Disposal Areas: South Oahu Ocean Dredged Material Disposal Site (SOODMDS) offshore of the Island of Oahu (21.252° N; 157.947° W), and the Confined Disposal Facility (CDF) located at Waipio Peninsula, Waipahu, HI (21.348° N; 157.974° W).

PROPOSED ACTIVITY: The applicant proposes two maintenance dredge projects at: 1) Bravo docks B4-B26, Mike Docks M1-M4, Sierra Wharves S1-8, and Hotel Piers H1-H4 in portions of the Pearl Harbor East Loch; and 2) the Upper Middle Loch of Pearl Harbor, to remove accumulated sediment from non-point source runoff and to re-establish designed and previously dredged depths. In the East Loch, approximately 99,000 cubic yards (cy) of sediment would be dredged to -35 feet (ft) to -40 ft mean lower low water (MLLW) elevation, plus 1 to 2 foot over-dredge within 115 acres of waters of the U.S. From the Upper Middle Loch, approximately 350,000 cy of sediment would be dredged to -22 ft MLLW, plus 1 to 2 ft over-dredge within 298 acres of waters of the U.S. The dredged material removed from the East Loch would be stored and later processed at the CDF and tested for beneficial reuse. The dredged material removed from the Upper Middle Loch would be transported by barge for ocean disposal at the SOODMDS, a U.S. Environmental Protection Agency (EPA) designated open ocean disposal site located about 8 miles south of Honolulu. See “Additional Information” section below for information regarding the project scope. See the enclosed figures for additional information regarding project location.

AUTHORITY(S): This permit application will be reviewed under Section 10 of the Rivers and Harbors Act of 1899 (33 USC § 403) and Section 103 of the Marine Protection, Research and Sanctuaries Act, as amended (33 USC § 1413).

EVALUATION FACTORS: The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered, including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people. In addition, the impact of the proposed activity on the public interest will include application of the criteria established under authority of Section 102(a) of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (40 CFR 220 to 229), as appropriate.

The Corps is soliciting comments from the public, federal, state, and local agencies and officials, and other interested parties in order to consider and evaluate the impacts of this activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition or deny a permit for the work. To make this decision, comments are used to assess impacts on endangered species, historic properties, essential fish habitat, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the activity.

ADDITIONAL INFORMATION:

PROJECT DESCRIPTION: The applicant proposes to maintenance dredge accumulated sediments from the aforementioned wharves, piers, and waters in Pearl Harbor by mechanical means (i.e., clamshell dredge with environmental bucket). An estimated 99,000 and 350,000 cubic yards of dredge material would be removed from the East and Upper Middle Lochs, respectively. Material dredged from Pearl Harbor would be either disposed of in uplands at the Confined Disposal Facility located at Waipio Peninsula or in waters of the U.S. at the EPA-designated SOODMDS.

The Navy Region Hawaii (Navy) is the project proponent, applicant, and lead Federal agency under the National Environmental Policy Act (NEPA). The applicant \has prepared a draft Categorical Exclusion under NEPA for the proposed project, which shall evaluate the environmental effects resulting from implementation of the project. In addition to NEPA, the Navy is also responsible for conducting consultations, as applicable, with appropriate federal and state resource agencies in order to comply with the requirements of Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, Section 106 of the National Historic Preservation Act (NHPA) of 1966, Section 307(c)(3)(A) of the Coastal Zone Management Act, Section 305(b)(2)-(4) of the Magnuson-Stevens Fishery Conservation Act (i.e., Essential Fish Habitat), Section 401 of the Clean Water Act and all other applicable federal laws, regulations and Executive Orders. The Naval Facilities Engineering Command Hawaii (NAVFAC HI) is the Navy’s authorized agent and federal agency designated to coordinate on behalf of the applicant. A summary of the Navy’s documented compliance with the aforementioned requirements is provided below.

Proposed Activity(s) Requiring DA Authorization. The applicant has applied for DA authorization to conduct work in navigable waters of the U.S. and to transport dredged material removed from the Upper Middle Loch for ocean disposal. An estimated total 413 acres of waters of the U.S. would be temporarily impacted by dredging activities resulting in removal of a 449,000 cy of dredged material. An estimated 350,000 cy of dredged material that would be removed from the Upper Middle Loch and transported to the SOODMDS for ocean disposal.

Table 1 – Summary of Impacts to Waters of the U.S.

Construction Methodology and Schedule. The applicant’s contractor, prior to dredging, would rake the seafloor within the dredge area to remove large debris, rocks, and boulders. Mechanical dredge removal of accumulated sediment material from within the defined dredge footprints would be conducted by a mechanical clamshell dredge mounted on a barge/vessel with position monitoring by GPS system. Hydrographic surveys would be conducted pre- and post-dredging for quality assurance. Project-specific best management practices (BMPs) would be implemented to avoid and minimize impacts to affected resources.

Depending on the source location, dredged material would either be taken to uplands or the SOODMDS, with concurrence from the EPA Region IX and the Corps. All sediment material destined for the SOODMDS has been or will be tested in accordance with the EPA and Corps ocean testing manual (OTM) and inland testing manual (ITM) prior to determining suitability by EPA for ocean disposal. Floatable material and debris larger than 6 inches prior would be screened and removed from dredged material prior to transport by disposal vessel or scow to the SOODMDS only under favorable weather conditions. Disposal tracking systems on the disposal vessel scow (primary) and/or the navigational system on the towing vessel (backup) would be used to ensure material is disposed of at the proper location.

The tentative start and end dates for both dredge projects are: 1) East Loch: start spring or summer 2018 and end before Oct 2019; and 2) Upper Middle Loch: start Jan 2018 and end Sep 2018. Night work during 5:00 PM and 5:00 AM is required for the dredging operations in the East Loch as a safety measure. All disposal operations would occur during daylight hours.

PROJECT PURPOSE AND NEED: The applicant’s stated project purpose is to support the Commander, Navy Region Hawaii’s mission by providing continued access by ships, boats, and other watercraft. Maintenance dredging is needed to maintain navigability of the subject navigable waterways and berthing areas for safe passage and mooring of vessels within Pearl Harbor and to meet the Navy’s operational requirements.

BASELINE INFORMATION:

General Site and Project Area Conditions. The East Loch and Upper Middle Loch dredge footprints within Pearl Harbor consist entirely of estuarine, subtidal or intertidal waters with unconsolidated bottom consisting of accumulated sediments and fine silts. Water quality within the harbor varies depending on location, environmental conditions, and human activities. The results and analysis of sediments tested also varied; material tested from the Upper Middle Loch was determined to show no toxicity whereas samples from the East Loch were found to contain concentrations of copper, lead, mercury and total polychlorinated biphenyls (PCBs) that may pose a risk to human health through consumption of fish and shellfish, or ingestion of sediment from that area of the harbor. Additionally, there is a potential for encountering munitions of explosive concern (MEC) and material potentially posing an explosive hazard (MPPEH) given the applicant’s past experience with the previous dredge of nearby areas and the likelihood of the proposed project areas being affected by the December 7, 1941 attack on Pearl Harbor.

Benthic Habitat Resources. Benthic survey information for the proposed project is location specific, although the proposed dredging area has not been recently surveyed except for areas near Piers H1-H4. Estuarine waters with the harbor support foraging and resting habitat for ESA-listed species such as sea turtles and Hawaiian monk seals, and humpback whales; and corals and other managed fisheries species. Coral resources typically occur around the other entrance channel and gradually diminish until being non-existent in the northern, estuarine ends of each loch given the natural influx of freshwater from regional streams and springs. Accordingly, corals are not expected to occur within the Upper Middle Loch. Within the harbor, however, corals are generally present only in shallow shelf areas and areas with hard substrate or man-made structures that are adjacent to, but outside of the proposed dredged footprint. Newer data shows that some corals and sea grass are present within the dredge footprint of the outer entrance channel.

DREDGED MATERIAL FOR OCEAN DISPOSAL: Due to the large quantity of material to be removed from Pearl Harbor, the applicant is proposing disposal of dredged material at the SOODMDS, located 4 miles south of the Pearl Harbor entrance channel as an alternative to disposal sites other than uplands. The applicant is seeking concurrence from EPA Region IX and the Corps prior to ocean disposal and has prepared and submitted the “Draft Dredged Material Sampling and Analysis Report, Upper Middle Loch, Pearl Harbor, Hawaii”, dated April 2017, for review in accordance with an EPA- and USACE-approved Sampling and Analysis.

The results of the review of the revised draft report found concentrations of certain contaminants in the sediments to be dredged were somewhat elevated (including: chromium, copper, lead, PAHs, PCBs, and dioxins/furans) without acute toxicity in any of the particulate phase bioassays, or the solid phase bioassays. Bioaccumulation testing indicated minor bioavailability for lead, PAHs, PCBs, and dioxins/furans without exceeding conservative toxicity reference values (TRVs). In some areas of the project site, chromium and copper showed somewhat greater bioavailability and did accumulate to concentrations that exceed some conservative TRVs. It is expected that bioaccumulation by invertebrates exposed to dredged sediments at the SOODMDS would be limited to within the disposal boundaries, which would also be subject to cover by other disposal operations.

On May 8, 2017 and subsequent update May 11, 2017, the EPA has determined that 350,000 cy of material from the Upper Middle Loch of Pearl Harbor is suitable for ocean disposal at the SOODMDS. As of date of this public notice, the EPA has not issued a concurrence for ocean disposal or mandatory conditions for use of the SOODMS.

MITIGATION: The applicant’s proposed mitigation (i.e., avoidance, minimization, and compensation) may change as a result of comments received in response to this public notice, the applicant's response to those comments, and/or the need for the project to comply with the public interest review factors. In consideration of the above, the proposed mitigation sequencing for the proposed project is summarized below.

Avoidance and Minimization. To avoid and minimize impacts to federally-listed threatened and endangered species, and other environmental resources, the applicant has developed numerous BMP measures that would be included in the contract documents and implemented during the proposed maintenance dredging and ocean disposal work. These BMPs are considered to be part of the applicant’s proposed action and include, but are not limited to, the following measures:

• Constant vigilance shall be kept for the presence of ESA-listed marine species during all aspects of the proposed action, to include a lookout on vessels to watch for turtles and marine mammals during transit. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards (300 ft).
• The project manager shall designate an appropriate number of competent observers to survey the areas adjacent to the proposed action for ESA-listed marine species. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards (300 ft).
• Surveys shall be made prior to the start of work each day, and prior to resumption of work following any break of more than one half hour. Periodic additional surveys throughout the work day are strongly recommended. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards 0500, visual inspection for turtles will be completed during daylight hours prior the start of the dredge operation at 1700.
• All work shall be postponed or halted when ESA-listed marine species are within 50 yards of the proposed work, and shall only begin/resume after the animals have voluntarily departed the area. If ESA-listed marine species are noticed within 50 yards after work has already begun, that work may continue only if, in the best judgment of the project supervisor, that there is no way for the activity to adversely affect the animal(s). For example; divers performing surveys or underwater work would likely be permissible, whereas operation of heavy equipment would likely not be. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards (300 ft.).
• The project footprint is limited to the minimum area necessary to complete the project.
• The contractor shall develop a turbidity management plan to include all turbidity related measures and management practices included in this assessment and to include a contingency plan if turbidity exceeds allowable limits.
• Project operations must cease under unusual conditions, such as large tidal events and high surf conditions, except for efforts to avoid or minimize resource damage.
• If visible turbidity from operations extends beyond 300 ft. in any direction, then operations will be stopped. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards (300 ft).
• Visual inspections for turbidity of the waters in and around the dredge area will be performed in regular intervals before and during the workday and will be documented on the Daily Reports. For dredging operations occurring during night hours, adequate lighting will employed such that turbidity can be reasonably detected out to 100 yards (300 ft.).
• Turbidity and siltation from project-related work shall be minimized by curtailing work during adverse weather and tidal/flow conditions.
• If dredging operations are occurring within 300 feet of a location known to have coral, seagrass, or other sensitive habitat, then the contractor shall use a silt curtain and water quality sensors in addition to the environmental clamshell.
• A coral and seagrass translocation plan shall be developed by the Navy in coordination with NOAA for situations where direct effects to coral and seagrass cannot be avoided.
• A contingency plan to control and clean spilled petroleum products and other toxic materials (on barge or land) is required.
• Appropriate materials to contain and clean potential spills shall be stored at the work site, and be readily available.
• All project-related materials and equipment placed in the water shall be free of pollutants. The project manager and heavy equipment operators shall perform daily pre-work equipment inspections for cleanliness and leaks. All heavy equipment operations shall be postponed or halted should a leak be detected, and shall not proceed until the leak is repaired and equipment cleaned.
• Fueling of land-based vehicles and equipment shall take place at least 50 feet away from the water, preferably over an impervious surface. Fueling of vessels shall be done at approved fueling facilities.
• A plan shall be developed to prevent debris and other wastes from entering or remaining in the marine environment during the project.
• No waste water shall be discharged to the harbor or ocean.
• Equipment or materials shall not be deployed in areas where they may impact live corals or other significant resources.
• Workers shall not attempt to feed, touch, ride, or otherwise intentionally interact with any protected species.
• Any associated ropes or tethers, as well as mooring lines for any marker buoys shall be kept to the minimum lengths necessary, and shall remain deployed only as long as needed to properly accomplish the required task.
• Work shall not be undertaken if any ESA-listed species is within 50 yards of the authorized work, and those operations shall immediately shut-down if an ESA-listed species enters within 50 yards of the authorized work. For dredging operations occurring during night hours, adequate lighting will employed such that protected species can be reasonably detected out to 100 yards (300 ft).
• There will be no in-place/underwater detonations of unexploded ordnance.
• Disturbance to the channel floor and nearby harbor will be limited to the project footprint.

Compensation. The proposed maintenance dredge work and transport of dredged material for disposal at the SOODMDS would result in no loss of waters of the U.S., or special aquatic sites (e.g., coral reefs, vegetated shallows, etc.). Accordingly, he applicant neither proposes nor anticipates the need for compensatory mitigation for dredging in previously dredged areas with the intent of restoring such areas to the original dredged depth.

WATER QUALITY CERTIFICATION: A final DA permit decision for the proposed work would not be issued until an individual water quality certification, or waiver thereof, as required under Section 401 of the Clean Water Act (Public Law 95-217) has been issued by the State of Hawaii, Department of Health, Clean Water Branch (CWB). Based on information contained in the DA permit application, the applicant has not submitted a Section 401 water quality certification application to the CWB.

COASTAL ZONE MANAGEMENT ACT CERTIFICATION: Section 307(c)(3) of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1456(c)(3)), requires the lead federal action agency to certify that the described activity affecting land or water uses in the coastal zone complies with the State’s Coastal Zone Management (CZM) Program. The applicant has obtained a CZM consistency concurrence from the State of Hawaii, Department of Business, Economic Development and Tourism, Hawaii CZM Program for the proposed work listed on the “Navy/Marine Corps De Minimus Activities Under CZMA” list (Ref No. P-12644), dated July 9, 2009, with applicable project mitigation and general conditions.

CULTURAL RESOURCES: The Navy has provided the following documentation for compliance with Section 106 of the National Historic Preservation Act (NHPA) of 1966. In accordance with stipulation IX(A)(1) of the August 21, 2003 Programmatic Agreement (PA) among the Commander Navy Region Hawaii, the Advisory Council on Historic Preservation, and the Hawaii State Historic Preservation Officer regarding Navy Undertakings in Hawaii, the Navy’s archaeologist determined that no further review is required under Section 106 of the NHPA because the proposed undertaking is listed in Appendix A, and is located outside of sensitive archaeological areas and would not affect known archaeological resources identified in the Navy’s 2008 Integrated Cultural Resources Management Plan (ICRMP) (Appendix A, I.B.3). The Navy’s NAVFAC HI archeologist also determined the proposed work near B4-B26, M1-M4, and S1-S8 is in close proximity to two potential downed attack aircraft sites. Accordingly, the following restrictions would apply: 1) restrict dredging to within the defined dredge footprint; 2) required stop work and immediate notification of Navy archaeologist upon discovery of human remains or other possible archaeological artifacts; and 3) no excavation of human remains or artifacts without consultation with the Navy’s archeologist.

As part of the DA permit application review and evaluation process, the Corps will consider the applicant’s determinations of effect on designated historic properties with respect to the Corps’ federal action and will incorporate by reference into our DA permit decision any agreed upon BMPs or other measures necessary to avoid and/or minimize adverse effects to historic properties including cultural resources.

ENDANGERED SPECIES: Section 7 of the Endangered Species Act (ESA) of 1973, as amended, requires federal agencies to consult with NOAA Fisheries and/or U.S. Fish and Wildlife Service (USFWS) on all federal actions that may affect species listed (or proposed for listing) as threatened or endangered or that may destroy or adversely modify their designated critical habitat. The applicant has identified four federally-listed marine species that are known to occur or have the potential to occur within the proposed project action area. These species include: Hawaiian Monk Seal (Monachus schauinslandi), Green sea turtle (Chelonia mydas), Hawksbill sea turtle (Eretmochelys imbricate), and Humpback Whale (Megaptera novaeangliae). By letters dated September 9, 2016 and May 1, 2017, the applicant determined that the proposed project “may affect, but is not likely to adversely affect” four listed species, and requested informal consultation with the NOAA Fisheries-Protected Resources Division (NMFS-PRD). As of date of this public notice, the applicant’s informal consultation with NMFS-PRD is incomplete. The applicant determined that the project would have no effect on other ESA-listed species specified below and as a result, no further action is required.

As part of the DA permit application review and evaluation process, the Corps will consider the applicant’s determinations of effect on these listed species with respect to the Corps’ federal action and will incorporate by reference into our DA permit decision any agreed upon BMPs or other measures necessary to avoid and/or minimize adverse effects to federally-listed species.

ESSENTIAL FISH HABITAT: The proposed work was evaluated by the Navy for potential direct, indirect and cumulative effects to Essential Fish Habitat (EFH) pursuant to Section 305(b)(2) of the Magnuson Stevens Fishery Conservation and Management Act of 1996 (MSFCMA), 16 USC 1801 et seq. and associated federal regulations found at 50 CFR Part 600, Subpart K. Within the Pacific Islands Region, EFH is designated for all federally managed species, referred to as Management Unit Species (MUS). These MUSs include bottomfish, seamount groundfish, pelagics, precious corals, coral reef ecosystems, and crustaceans.

The applicant has determined the proposed action may adversely affect EFH and accordingly, prepared an EFH Assessment to initiate consultation with NOAA Fisheries-Habitat Conservation Division (NMFS-HCD). The Navy submitted its EFH Assessment to NMFS-HCD on September 9, 2016 and on May 1, 2017 to address the effects the proposed activity would have on EFH with proposed mitigation measures to offset direct impacts to corals. As of the date of this public notice, the applicant’s EFH consultation with NMFS-HCD is incomplete. EFH Conservation Recommendations from NMFS-HCD are anticipated.

As part of the DA permit application review and evaluation process, the Corps will consider the applicant’s determinations of effect on designated EFH with respect to the Corps’ federal action and will incorporate by reference into our DA permit decision any agreed upon BMPs or other measures necessary to avoid and/or minimize adverse effects to designated EFH resources.

PUBLIC HEARING: Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application. Requests for public hearings must state clearly and concisely, the reasons and rationale for holding a public hearing.

COMMENT AND REVIEW PERIOD: Conventional mail or e-mail comments on this public notice received during the comment period will be made part of the record and will be considered in determining whether it would be in the public interest to authorize this proposal. In order to be accepted, e-mail comments must originate from the author’s e-mail account and must include on the subject line of the e-mail message the permit applicant’s name and Corps file number POH-2017-00070.

All e-mail comments should be sent to:

joy.n.anamizu@usace.army.mil.

Conventional mail comments should be sent to:

U.S. Army Corps of Engineers
Honolulu District, Regulatory Branch
Building 230 (Attn: CEPOH-RO)
Fort Shafter, Hawaii 96858-5440

Both conventional mail and e-mail comments must reach this office no later than the expiration date of this public notice to become part of the record and be considered in the decision. Please contact Ms. Joy Anamizu at (808) 835-4308 if further information is desired concerning this notice.

The mission of the Corps’ Regulatory Program is to protect the Nation's aquatic resources, while allowing reasonable development through fair, flexible, and balanced permit decisions. The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters including wetlands. The Regulatory Program in the Honolulu District is executed to protect aquatic resources by developing and implementing short- and long-term initiatives to improve regulatory products, processes, program transparency, and customer feedback considering current staffing levels and historical funding trends.
Corps permits are necessary for any work, including construction and dredging, in the Nation's navigable waters and their tributary waters. The Corps balances the reasonably foreseeable benefits and detriments of proposed projects, and makes permit decisions that recognize the essential values of the Nation's aquatic ecosystems to the general public, as well as the property rights of private citizens who want to use their land. The Corps strives to make its permit decisions in a timely manner that minimizes impacts to the regulated public.

During the permit process, the Corps considers the views of other Federal, state and local agencies, interest groups, and the general public. The results of this careful public interest review are fair and equitable decisions that allow reasonable use of private property, infrastructure development, and growth of the economy, while offsetting the authorized impacts to the waters of the United States. The permit review process serves to first avoid and then minimize adverse effects of projects on aquatic resources to the maximum practicable extent. Any remaining unavoidable adverse impacts to the aquatic environment are offset by compensatory mitigation requirements, which may include restoration, enhancement, establishment, and/or preservation of aquatic ecosystem system functions and services.

This public notice is issued by the Chief, Regulatory Branch.