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Corps Engrs Dock Peosta ChannelMEMORANDUM March 12, 2002 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Corps of Engineers Construction Permit Peavey Company - Peosta Channel River Terminal Site Economic Development Director Bill Baum is submitting the attached update on the status of the Peavey Company's proposed commercial river terminal dock facility located in the Peosta Channel, and requesting authorization for the City Manager to execute the Corps of Engineers Construction Permit. I concur with the recommendation and respectfully request Mayor and City Council approval. MichaeI C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Bill Baum, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM TO: FROM: SUBJECT: March 11, 2002 Michael C. Van Miiligen, City Manager Bill Baum, Economic Development Director Corps of Engineers Construction Permit Peavey Company - Peosta Channel River Terminal Site INTRODUCTION The purpose of this correspondence is to update you on the status of the Peavey Company's proposed commercial river terminal dock facility located in the Peosta Channel and request authorization for the City Manager to execute the Corps of Engineers Construction Permit. BACKGROUND As part of the America's River Project and the development of the 4th Street Peninsula Riverfront, the City negotiated a multi-party land exchange and lease reassignment. The Peavey Company which operates a terminal storage facility in the 4th Street Peninsula agreed to relocate their operations to the 12th Street Extension commercial district. The property is owned by the City and was formerly leased by the Flynn Ready Mix Company and Dubuque Terminals (Newt Marine Service). The terms of the land exchange and lease agreement require the City to work with the Corps of Engineers (COE) and any other local, state and federal agencies to obtain authorization to construct a dock terminal in the Peosta Channel. In April of 2001, the City and the Peavey Company submitted to the COE a Joint Permit Application for the construction of a new commercial dver terminal dock facility located in the Peosta Channel. To facilitate the operational efficiency of the new Peavey Company river terminal facility, the existing easterly dock will be used to offioad product from barges while the proposed dock will be used to load product onto barges. The Peavey Company proposes to construct a 21 ft. diameter sheet pile load cell dock and four (4) mooring pile clusters within the Peosta Channel riverbank toe of slope. During the mandatory public review process of the Corps of Engineers, the public and various regulatory review agencies have an opportunity to review the permit application and provide input. Concerns were brought forth by the Iowa Department of Natural Resources and the U.S. Fish and Wildlife Service regarding potential endangered species in the area. Due to the concerns brought forth, the City was required to complete a freshwater mussel site survey to determine the presence and/or absence of freshwater mussels at the Peavey Company - Peosta Channel River Terminal Site. In early September 2001, the mussel site survey was completed. The results of the mussel survey found one living specimen of the federal and state endangered Higginsi pearly mussel and one dead shell specimen of Iowa threatened squawfoot were found. Due to the presence of one (1) Higginsi pearly mussel found at the Peavey - Peosta Channel River Terminal Site, the Federal Endangered Species Act of 1973 requires some type of remediation action be implemented so that the Higginsi mussel area would not be impacted by the proposed project. MITIGATION MEASURES In working extensively with the Corps of Engineers, the Iowa Department of Natural Resources and the U.S. Fish and Wildlife Service, the City has agreed to perform an additional mussel site survey of the impacted areas and to relocate any mussels found within the construction footprint of the proposed sheet pile load cell dock and four (4) moodng pile clusters. The above mitigations measures have been approved by all regulatory review agencies and are incorporated as conditional requirements of the Construction Permit. The cost to survey and relocate any mussels found within the impacted areas is estimated between $15,000 - $20,000. Once the site survey and mussel relocations are completed, the conditional requirements of the permit will be met, the Peavey Company will have authorization to proceed with the proposed commercial river terminal dock facility in the Peosta Channel. Staff anticipates completing the mussel survey and relocation in early May. DISCUSSION Once the City has obtained the Construction Permit, the City can complete the terms of the multi-party land exchange and lease reassignment agreement with the Peavey Company. Per the terms of the agreement with the Peavey Company, the cost associated with the design and construction of the proposed dock facility will be the responsibility of the Peavey Company. Construction of the proposed dock facility will begin immediately upon execution of the lease agreements and the completion of the mussel survey and relocation. RECOMMENDATION I would recommend that the attached Corps of Engineers Construction Permit be approved and that the City Manager be authorized and directed to sign the Permit on behalf of the City. ACTION TO BE TAKEN The City Council is requested to adopt the attached resolution, which authorizes the City Manager to execute the Corps of Engineers Construction Permit to allow the Peavey Company to construct the Peosta Channel River Terminal Site. MAK/vjd Prepared by Robert D. Schiesl, Civil Engineer cc: Cindy Steinhauser, Assistant City Manager Pauline Joyce, Administrative Services Manager Barry Lindahl, Corporate Counsel Michael A. Koch, Public Works Director Pam Myhre, Economic Development Del Uhlick, Peavey Company RESOLUTION NO. 150-02 RESOLUTION AUTHORIZING EXECUTION OF THE CORPS OF ENGINEERS PERMIT FOR CONSTRUCTION OF A RIVER TERMINAL DOCK FACILITY IN THE PEOSTA CHANNEL Whereas, the City of Dubuque and the Peavey Company have negotiated a lease re-assignment to relocate Peavey's operations to the 12th Street Extension Commercial District; and Whereas, the terms of the proposed lease agreement require the City to work with the Peavey Company and the Corps of Engineers to obtain a permit to construct a dock terminal in the Peosta Channel for the use of the Peavey Company; and Whereas, the Peavey Company proposes to construct a 2'l-foot diameter sheet pile load cell dock and four (4) mooring pile clusters within the Peosta Channel riverbank toe of slope; and Whereas, environmental concerns regarding the existence of freshwater mussels at the proposed site will require relocation of any mussels in the construction area, as required by the Federal Endangered Species Act of 1973; and Whereas, the City Council of the City of Dubuque approves the terms and conditions of the Corps of Engineers Permits, including the relocation requirements for any freshwater mussels found in the construction area. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City Council approves the terms and conditions of the attached permit from the Corps of Engineers for the Peavey Company's construction of a river terminal dock facility in the Peosta Channel. Section 2. That the City Manager be authorized and directed to execute the permit on behalf of the City of Dubuque and to forward the permit to the Corps of Engineers for completion of the permit process. Passed, approved and adopted this 18th day of March, 2002. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk F:\USERS\WBaum\corpsofengineerspermitres[1].doc DEPARTMENT OF TH ~: ARMY ROCK ISLAND DISTRICT, CORPS OF ENGINEERS CLOCK TOWER BUILDING - P.O. BOX 2004 POCK ISLAND, ILLINOIS 61204-201M February 4, 2002 Operations Division SUBJECT: CEMVR-OD-P-409240 Mr. Bob Schiesl City of Dubuque City Hall 50 West 13th Street Dubuque, Iowa 52001 Dear Mr. Schiesl: Enclosed is a Department of the Army permit (in triplicate) which will authorize work in conjunction with the construction of a barge loading facility on the Mississippi River in Dubuque, Dubuque County, Iowa. Please carefully review the enclosed permit, and also refer to the enclosed Notification of Applicant Appeal Process. The decision regarding this action is based on information found in the administrative record, which documents the District's decision-making process, the basis for this decision, and final decision. If the permit is acceptable to you, please have a representative from the City and a representative from Peavey Company sign and date all copies of the permit (page 4). Return all copies of the permit to this office along with a check for $100.00 (made payable to the Rock Island District, Corps of Engineers) at the following address: Mr. Steven J. Vander Horn, P.E. Chief, Regulatory Branch US Army Corps of Engineers, Rock Island ATTN: OD-P Clock Tower Building Post Office Box 2004 Rock Island, Illinois 61204-2004 The penuit will become effective when signed by an authorized representative of this office. Copies of the signed permits will be returned to you for your files and Peavey Company's files. If you would, please also complete the enclosed customer service survey and return it along with the permit copies. Thank you for your cooperation. Should you have any questions, please contact me by letter, or telephone me at (309) 794-5380. Sincerely, Enclosures DEPARTMENT OF THE ARMY PERMIT Permit Number: CEMVR-OD-P-409240 Pcn-mittee: City of Dubuque City Hall 50 West 13th Street Dubuque, Iowa 52001 And Peavey Company 1200 Purina Drive Dubuque, Iowa 52001 Section 10/404 POC: Mr. Bob Schiesl Tel: (563) 589-4270 POC: Mr. Delbert Uhlik Tel: (563) 556-4245 Effective Date: Expiration Date: 31 December 2005 Issuing Office: U.S. Army Corps of Engineers, Rock Island District Clock Tower Building - P.O. Box 2004 Rock Island, lllinois 61204-2004 You are authorized to perform work in accordance with the terms and conditions specified below. NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate d/strict or division office of the Corps of Engineers having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer. Project Description: The permittees will construct a new barge loading facility on the Mississippi River. A 21-foot-diameter steel sheet pile cell filled with sand will be constructed to support an elevated unloading conveyor structure. Four, 7-pile steal clusters will be driven into the riverbed and filled with concrete. The pile clusters will be located approximately 90 feet apart from each other and from the main loading cell. Project Location: Mississippi River, Peosta Channel, approximate fiver mile 580.3, in Section 19, Township 89 North, Range 3 East, in Dubuque, Dubuque County, Iowa. In accordance with the plans and drawings attached hereto which are incorporated in and made a part of this permit. Drawing(s) No. CEMVR-409240 Sheet 1 of6, Location Map Sheet 2 of 6, Plan View Sheet 3 of 6, Cross Sections Sheet 4 of 6, Plan View Sheet 5 of 6, Cross Section Sheet 6 of 6, Cross Section Permit Conditions: General Conditions: 1. The time limit for completing the work authorized ends on the date specified on page 1. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before that date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party, in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archaeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recoveW effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. Ifa conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions. (Condition is not applicable for Section I 0 Permits.) 6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your pcnmit. Special Conditions: 1. That the following measures shall be performed by the permittees to avoid or minimize take of the Higgins' eye pearly mussel and protect mussel resources located within the project impact area: a. The permittees shall comply with the terms, conditions, and reasonable and prudent measures stated in the attached U.S. Fish and Wildlife Service letter dated January 25, 2002. b. The permittees shall notify Mr. Gene Wassenhove (309) 794-5368, from this office and Mr. Robert Clevenstine, Fish and Wildlife Service Office, Rock Island Field Office (ES), 4469 48th Avenue, Rock Island, Illinois 61201, (309) 793-5800, ext. 521, a minimum of 15 days prior to the commencement of the relocation activities. No work shall occur on the project until you are granted approval from this office to proceed. 2. That the 9 general conditions and 1 special condition listed in the attached lettm' from the Iowa Department of Natural Resources, dated January 29, 2002, are considered to be part of this permit. 3. That the permittees understand and agree that, if future opcu'ations by the United States require the reanoval, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or Ids authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittees will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. 2a ~ Further Information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( X ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). ( X ) Section 404 of the Clean Water Act (33 U.S.C. 1344). ( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, state, or local authorizatigns required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or bom natural causes. b: Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not conlzary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). 3 c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit. Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit. Permittee Date Permittee Date This issuing officer for this permit is William J. Bayles, Colonel, U.S. Army, District Engineer, Rock Island District. This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, and in accordance with CEMVR-OD-P appointment order 28 March 2000, has signed below. John G. Betker Date Project Manager When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. Transferee Date 4 L:24 000 I MILE --RVAL 10 FEET ;ENT 5.FOOT CONTOURS AN SEA LEVEL )NAL MAP ACCURACY STANDARDS R, COLORADO 80225, OR WASHINGTON, D. C. 20242, EY, IOWA CITY, IOWA 52240, STORY SUR"?EY, MADISON, WISCONSIN 53706, RVEY, URBAN~.ILLINOIS 61801 ROAD CLASSIFICATION Heavy-duty ......... Light-duty ............... Medium.duty_.....=~,~_:_.~= Unimproved dirt ~ U. S. Route (~ State Route DUBUQUE NORTH, iOWA--WIS---! N4230--wg087.5/7'5 1956 PHOTOREVISED 1972 CEMVR-0D-P-4092- Location Map Sheet 1 of 6 Cross - Section Details Refer To Sheets 3,4,5 Peosta Channel VICINITY MAP Existing Exi*ting 0 ~)C)~C) Peavey Company storas* B/ns Peosta Channel Terminal Storage LIST DF ADJACENT PROPERTY OWNERS: (~ Peavey Company - Peosta Channel Terminal (Leased By City of Dubuque) 505 East 7th. Street (~) Hodge Material Handling (Leased By City of Dubuque) 1111 Pur/na Drive (~ City of Dubuque, City Hall, 50 West 13th. Street CENCR FORM 427 PROdECT DESCRIPTION: ConsU'uct New Commercial Dock Facility Including a 21 ft. Diam. Sheet Pile Load Cell And 4 - Mooring Pile Ousters LOI2ATIrlN: Peavey Company - Peosta Channel Terminal Mississippi River Mile 580.1 City of Dhbuque, Iowa County of Dubuque, Stat~ Of Iowa US ARMYCORPS OF ENGINEERS CEMVR-OD-P-40924© Location Map and Plan View CEMVR-OD-P-409240 Plan View Sheet 4 of 6 CEMVR-OD-P-4092~O Cross Section Sheet 5 of 6 CEMVR-OD-P-4092± Cross Section Sheet 6 of 6 FWS/RIFO United States Department of the Interior FISH AND WILDLIFE SERVICE Rock Island Field Office 4469 48~ Avenue Court Rock Island, Illinois 61201 Phone: 009) 793-5800 Fax: (309) 793-5804 January25, 2002 U.S. Army Engineer District Rock Island ATTN: RM (Betker) Clock Tower Building, P.O. Box 2004 Rock Island, Illinois 61204-2004 Dear Mr. Betker: This letter provides our biological opinion regarding work associated with the City of Dubuque's request for Deparmaent of the Army permits. Public Notice No. 409240 described the construction of a new barge loading facility in Peosta Channel at approximate Mississippi River mile 580.3. Public Notice No. 407500 described associated maintenance dredging activities at 21 sites between approximate Mississippi River miles 578.9 to 581.4 pursuant to riverfront development by the City of Dubuque, including the Peosta Channel site. These Public Notices were sought by the applicant to replace the permit previously authorized under Public Notice No. 070-0X6-1-204460. All dredged material is proposed to be disposed of in upland sites. Of the 21 sites, 2 had no prior dredging history. These two sites, the Riverwalk and Peosta Channel, were surveyed for the presence of mussels including Federal or State listed endangered and threatened species. Survey results indicated no significant resources at the Riverwalk location. One specimen of the federally listed endangered Higgins' eye pearly mussel (Lampsilis higginsi) was found from a total of 20 live mussels at the Peosta Channel location. We consider the information provided by the applicant sufficient to prepare the enclosed Biological Opinion. We are interested in meeting with you and your staff to discuss the development of a programmatic-type approach to incidental take of Higgins' eye pearly mussels in conjunction with small development projects. Please contact Jody Millar of my staff at extension 524 for further discussion. JAU 2 8 CEMVFt-OD-P Mr. Betker Page 2 This letter provides comments under the authority of and in accordance with the provisions of the Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.); the National Environmental Policy Act of 1969 as amended; and the Endangered Species Act of 1973, as amended. Questions regarding this project may be directed to Robert Clevenstine at extension 521. CC: FWS UMRNWFR (Britton) FWS TCFO (Delphy) USEPA RVII (Taylor) IADNR (Boland, Griffin, Schwake) Supervisor BIOLOGICAL OPINION on the Impact of Proposed Permit Modifications CENCR-OD-P 409240 and 407500 on Lam£silis higginsi Action Agency: U.S. Army Corps of Engineers (COE), Rock Island District Action Considered During Consultation: Authorization of maintenance dredging at 21 locations; and loading cell and piling construction at one location, under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act (33 U.S.C. 1344). Described by Corps of Engineers, Rock Island District Public Notices No. 409240 and 407500, the actions are necessary to perform maintenance dredging and relocate barge loading facilities as part of overall riverfront development by the City of Dubuque, Iowa. Consultation By: USFWS, Rock Island Field Office Date of Issuance: January 25, 2002 Consultation History: · No request for formal consultation has been made by the Action Agency. · Distribution of Public Notice No 407500 on April 25, 2001, for authorization of maintenance dredging at multiple locations. · May 21, 2001 - FWS letter recommending surveys of two sites: Riverwalk and Peosta Channel. · July 5, 2001 - Site visit with IaDNR, COE and City of Dubuque staff. Requested bathymetric info to defme survey areas. · July 31, 2001 - City provided bathymetric maps. · August, 2001 - City, IaDNR, and FWS email review and recommendations on sampling protocol · Distribution of Public Notice No. 409240 on September 11, 2001, and on September 26, 2001, for authorization to construct a loading cell and piling clusters. · September 17, 2001 - Survey results provided to agencies, includes L. higginsi presence verification. · January 16, 2002 - Meeting with Peavey and City of Dubuque to discuss project modifications versus relocation of mussels. Species Considered in This Biological Opinion: Higgins' eye pearly mussel (Lampsilis higginsO, a federally listed endangered freshwater mussel. Description of the Proposed Action: Discharge of clean fill is proposed, enclosed within a 21-foot diameter steel sheetpile cell at the Peosta Channel site with 4 adjacent 7-pile steel clusters for mooring; and general maintenance dredging at a total of 21 sites. Overall 2 applicant goal is to renew prior dredging authorization including two new sites, and relocate bulk commodity transfer capability for a tenant company. The action includes removal and relocation of mussels from the direct impact zone of construction and dredging at the Peosta Channel location. Status of the Species/Environmental Baseline: The current status of the species is detailed on pages 93-94 in the Final Biological Opinion for Operation and Maintenance of the Nine- Foot Channel on the Upper Mississippi River System. L. higginsi is generally considered a large river species, and was once widely distributed in the Mississippi, Illinois, and Iowa Rivers. It was also known from the Ohio River, the Elkhorn River in Nebraska, the Black and White Rivers in Arkansas, and the St Croix and Minnesota Rivers in Minnesota. It is now found only in the Upper Mississippi River, above Canton, Missouri; the St Croix in Wisconsin; and the lower Rock River in Illinois. The Recovery Plan for this species was completed in 1983. No critical habitat has been designated for this species, but essential habitat has been designated at Hudson, Wisconsin; Whiskey Rock, near Lansing, Iowa; Harper's Slough, near Harper's Ferry Iowa; Prairie du Chien, Wisconsin; McMillan Island near Gtutenburg, Iowa; Cordova, Illinois; and Sylvan Slough at Moline, Illinois. An updated Recovery Plan has been developed and is anticipated to be distributed within the calendar year. Surveys of the two subject sites, the Riverwalk and Peosta Channel, were completed in August 2001. Based on information provided by the applicant's mussel survey contractor, no defmable mnssel bed exists at either project site sampled. No Federal or State listed endangered species or threatened species were encountered at the Riverwalk site. One individual of the Higgins' eye pearly mussel was found at the Peosta Channel site. At this site, recruitment was evidenced by the presence of young individuals for the fragile papershell. All other species collected, including L. higginsi, were estimated to be over 10 years old with no evidence of reproduction. Zebra mussels - Zebra mussels can potentially reduce or eliminate native mussels through competition for food resources and colonization on native mussel shells causing suffocation or reducing the hosts ability to close during adverse conditions. No living zebra mussels were found during the survey, although the Contractor indicated that the substrate at the Peosta Channel site consisted almost entirely of zebra mussel shells with some soft mud and fine sand. Dead zebra mussel shells were present throughout the Riverwalk sample area, but were · not abundant. Effects of the Proposed Action: Direct Impacts - Maintenance dredging is an ongoing activity throughout the project area and in some locations may preclude colonization or reestablishment of mussels including the subject species. However, no increase in this effect is anticipated from continuation of those activities. For the two new sites, no L. higginsi were encountered at the Riverwalk, and much of the area to be dredged was either exposed or very shallow. Therefore no effect on the species or its habitat is anticipated there. At the Peosta Channel site, mussels will be relocated from the impact zones of dredging and cell or pile placement, therefore adverse effects are anticipated to be minimal. Although only one individual ofL higginsi was encountered during the survey, there is potential to find additional individuals during the relocation effort. Relocated mussels will be placed in a nearby upstream or cross-channel bed, where habitat conditions should be more favorable. Indirect Impacts - Maintenance dredging activities typically resuspend fine sediments which are carried varying distances away from the dredging location, depending on daily flow and current patterns around the project sites. The turbidity may result in short-term adverse effects but are not anticipated to result in take of any mussels. Cumulative Effects of the Proposed Action: Commercial harvest - There is no definable mussel bed suitable for commercial harvest known within the project area. Recreational traffic - Significant recreational navigation activity occurs in the area now and no changes would be anticipated from the proposed actions. Some changes in recreation traffic patterns may occur with dredging the Riverwalk location and providing temporary mooring or courtesy docks. Shore-based expansion of tourist facilities along the Riverwalk is not likely to contribute to cumulative adverse impacts on the species. Hazardous material spill - Although the chances of a large scale spill are remote, any discharge of fertilizer, salt, fuel, or bulk oil could result in significant, if not total, mortality of any mussels colonizing the project area. However, due to the generally poor mussel habitat at this location and the relocation of endangered mussels outside of the project area, risk to endangered species at this site is low. Summary - The general paucity of mussel habitat and the current level of development throughout the project area indicate little contribution to cumulative effects from authorization of the proposed actions. Biological Opinion: We have determined that the proposed actions are not likely to jeopardize the continued existence of L. higginsi. Conservation Recommendations: Section 7(a)(1) of the Endangered Species Act, as amended, directs Federal agencies to use their authorities to carry out conservation programs that benefit endangered or threatened species. Conservation measures are actions that can minimize or avoid adverse effects on listed species or critical habitat beyond the level necessary to avoid the likelihood of jeopardy. Conservation measures include the relocation of endangered mussels as outlined in the incidental take statement. Incidental Take Statement: The proposed maintenance dredging and relocation of commodity transfer activity may cause an incidental take of the species. 4 Section 9 of the Endangered Species Act, as amended, prohibits any taking of listed species without special exemption. Sections 7Co)(4) and 7(0)(2) exempt taking that is incidental to, but not intended as part of an agency's action from the prohibitions of Section 9, as long as that taking complies with this Incidental Take Statement. Consequently, the following measures are binding on the Action Agency and are not subject to it's discretion, if the subject permit is issued.. A. Level of Incidental Take Due to the direct and indirect impacts of the project, and the lack of definitive data on the actual abundance and spatial distribution of individuals ofL. higginsi within the project area, we roughly estimate two individuals lost as a result of incidental take. B. Reasonable and Prudent Measures to Avoid or Minimize Take 1. Relocate mussels including all L. higginsi encountered from the Peosta Channel dredging and construction zones. 2. The applicant has agreed to have mussels collected from the dredging zone and immediate cell and piling footprints with a 10-foot buffer area around the footprints. Mussels collected will immediately be replaced in suitable upstream substrates nearby. Relocation will be coordinated concurrently with piling placement to ensure piling placement in cleared areas. L. higginsi collected may be transferred by a Service biologist at the Service's discretion. 3. Perform relocation during late April or early May to minimize spawning impacts. C. Terms and Conditions to Minimize Impacts of the Incidental Taking. The applicant will notify the Service prior to commencement of the relocation. Opportunities for Further Consultation: This concludes consultation on Public Notices 409240 and 407500. The U.S. Army Corps of Engineers is required to reinitiate formal consultation with the Fish and Wildlife Service (1) if new information reveals effects on listed species or their habitat that were not considered in this biological opinion; (2) if the action is modified in a manner that affects listed species or their habitat that were not considered in this Biological Opinion; (3) if a new species is listed or critical habitat is designated that may be affected by the action; (4) the amount or extent of incidental take is exceeded. THOMAS J. ¥1LSACK, SOYERNOB' SALLY d. P£Df~SON, LT. ~OYE~NO~ ~m~l~zy Z~, STATe OF IOWA DEPARTMENT OF NATURAL RESOURCE~ JEFFREY P- VONK, DIRECTOR City of Dubugu¢ Mr. Robert Scl~esI E~gin¢cri~8 Division ~O West 15m Street DuhuclUC~ IA 52001-4864 Feavey Comply l g00 Purlua Drive Dubuque, IA 52001 Dear Mr. Schicsl: 'Afar reviewit~ you~ reques~ for State 401 Wa~r Q~ ~fi~fio~, ~e enc[o~d ~ficafion. F~ r~d the a~ched con~fio~ care~y ~e ~oject. A co~ ~ ~ Ce~cafion ~ b~n f~ded to the office ~ ~e ~y ~dicated below, You ~ ~sed to con. ct ~t o~ce a~n r~ipt of ~ ce~ca6om If you }u~e any ClUC~ficms or comments about the certification or any conditions contained therein: please contact me at thc address shown below or call (515) 25I~6615. sincerely, Ctwis~inc M. Schwake ~nvironmental Specialist cc.' Mr. Jolm Betker, Depaca~ent of thc Army Corps of Fmgineers, Rock Island Distric% Clock Tower Brdlding, ?.0. Box 2004~ l~ck Island, IL 61204-Z004 ',VALLAC~ STATE OFFICE BUILDING I DES MOINES, IOWA 50319 515-281-5918 TDD 515-242-5967 FAX 515-281-6794 W~FW.STAT~IA. U~/DI~R 01/30/02 08:48 FAX 515 281 8895 DKR ~008/009 IOWA DEPAKTMENT OF NATUKAL RESOURCES C,~rtificstion i~u~l SECTION 401 WATER QUALITY CERTLFICATION Effective: Ja.nuz.ty 29, 2002 C/~y of Dubuque & Feavey Comp~-~y Dubuclu~, IA ~2001 Frojcc~ certified: US Army Corps of Engineers, Joim F~tblic Notice No. CF2s4VR-OD-F-409240 S~te 40I Water Qu~ity Certification, Appkic~ti~n LOS No,: 01-N-0~I-09-0B-S ~os~ to co~ a new ~c l~a;~g f~ on ~ ~i~ ~v~ ~h~ an ~n$ o~on ~ the 4m S~t P~ ~at r~ ~oca~ ~e to o~ musse~ inclu~g ~ A ~i~' ~co~t~d ~om thc Fe~ Th/s reach of the Mi~ss/ppi R/v~r is d~ignated ~s a Chss A ~ Con.ct Recreation and Cl~ss B S~g~dficant Re.source Warm Water s~:~m. Such waters ~e to be 17mtee~e~'for priraa-~ conta~ r~fio~ for ~ ~t~ce ~ a ~de ~ of ~ wat~ ~ies, ~clu~ send,ye ~, ~ S~te 40I Water ~ ~fi~ ~ b~ i~ed ~'~e I~a ~p~t ~ N~ ~o~ ~S ~ E~s b~e ~ 5e~ 404 pe~t c~ be ~. ~ 401 ~Cafi~ ~p~n~ ~ D~s can~nce ~ ~e p~ect c~ed is ~ ~ thc Wamr Q~ ~ of ~e ~te ~ Iowa ~ ~t fo~ ~ ~ ~1~ I~ A~a~e Co~. 01/30/02 08:49 F.~ $15 281 8895 DNR ~00g/009 C~ty of Dubuque and peavey Compm~y P~g~ 3 G~qERAL CO1N-D1TION$ L ?errnittee ~s re.spon~iblc for ~u~ ~ for comp~ce ~ ~ch o~ ~ or ap~a~ ~ ~ybe mqu~ed by ~ D~mt, red.al, or loc~ 2. 5. ~nt for h~g ~d ~ CO~ON spa~