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HomeMy WebLinkAboutItem 2 - Review of the City's Regional General Permit (RGP-54)aEwvoRr CITY OF °� ms NEWPORT BEACH Cq�F00.HP Harbor Commission Staff Repo TO: HARBOR COMMISSION FROM: Public Works Department Chris Miller, Harbor Resources Manager 949 - 644 -3043, cmiller @newportbeachca.gov rt Agenda Item No. 2 November 14, 2012 TITLE: Review of the City's Regional General Permit (RGP -54) ABSTRACT: The City's Regional General Permit program will be discussed along with some proposed options for the next permit in 2014. Staff is requesting guidance from the Harbor Commission on how best to proceed by the January 2013 meeting. RECOMMENDATION: 1. The Harbor Commission will consider forming a subcommittee to examine various options for the next RGP -54 permit, and will return to the Commission in January 2013 with a recommended approach. FUNDING REQUIREMENTS: There is no fiscal impact related to exploring different alternatives to the RGP -54 program. However, once a specific path is chosen, funds will be expended depending on the direction the Commission advises. DISCUSSION: For well over 25 years, the City's residents have relied on the RGP -54 permit as a mechanism to dredge under their residential and commercial piers. This permit has gone through different iterations over the years, but generally it has been valid for a period of five years, and has been limited to dredging down to -7' MLLW (+ 1' overdredge). In addition, the sediment around the entire perimeter of the harbor is required to be tested at a cost of over $300,000 — a process that can easily take over a year to complete. Lately, the residents have decreased their usage of the permit and their need for dredging, largely due to the present state of the economy (dredging can be expensive), and the regulatory restrictions on eelgrass (dredging cannot occur within 15' of any eelgrass). As a result, demand has decreased to just a few people over the past 3 -4 years. Given the City's expense of securing the permit, and the complications involved in the application review process with the regulatory agencies, staff is considering other alternatives / approaches to the RGP -54. Is there a better way to manage this type of a permit while still assisting the residents at an acceptable level? Does the current permit still work for Newport Harbor? Review of the City's Regional General Permit (RGP -54) November 14, 2012 Page 2 These are important questions that must be asked and resolved very soon. The current RGP -54 permit expired in November 2011, and staff has been working to renew this permit for the past two years. (It is expected to be renewed this month, then be valid until Spring 2014.) With the length of time involved in the testing / permit process, it is imperative that we investigate alternatives sooner than later. The City retained Anchor QEA to examine different alternatives for the RGP -54 permit, and their suggested ideas are attached. The Harbor Commission is requested to form a subcommittee to review the RGP -54 permit along with the alternative approaches from Anchor QEA, and to return to the Commission in January with a recommended path forward. ENVIRONMENTAL REVIEW: Staff recommends the Harbor Commission find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the Harbor Commission considers the item). Submitted by: q, 4/ Chris Miller ANCHOR OEA 26300 La Alameda, Suite 240 Mission Viejo, California 92691 Phone 949.347.2780 Fax 949.334.9646 www.anchorqea.com MEMORANDUM To: Chris Miller, City of Newport Beach Date: October 18, 2012 From: Jack Malone and Adam Gale, Anchor QEA, L.P. Cc: Steve Cappellino and Joshua Burnam, MPH, D.Env., Anchor QEA, L.P. Re: Comparison of Feasible Options for RGP Implementation Since the mid -1970s the City of Newport Beach (City) has offered an economical and streamlined program for individual property owners to maintain safe and effective navigational depths adjacent to their docks through Regional General Permit (RGP) 54 with the U.S. Army Corps of Engineers. The City maintains RGP 54 and is responsible for renewing it every 5 years; however, specific limitations of RGP 54 prevent a large portion of Newport Bay property owners from using the program. In addition, costs for the City to maintain RGP 54 have increased over the years as regulatory requirements have become more stringent (primarily sediment testing requirements). This memorandum describes the existing RGP 54 currently being renewed and identifies two other options for restructuring RGP 54, which could offer a more flexible and/or cost effective approach to the City. It is crucial to consider potential options for the next version of RGP 54 now in order to update sediment characterization for the existing permit. If the City decides to maintain the existing RGP 54, then a Tier 3 evaluation for the bay must be completed. A Tier 3 evaluation would assess the impact of any contaminants in the proposed dredged material on appropriate sensitive organisms to determine if there is potential for the material to have an unacceptable impact. The Tier 3 evaluation methods are bioassays and bioaccumulation tests. If the City decides on Option 1 or 2 described below, then the existing RGP 54 (including the Tier 3 evaluation) would be abandoned and the City would apply for a new RGP, which would take approximately 1 year for review and approval by the regulatory agencies. At that point, a new 5 -year permit would be approved. A decision should be made in the near term to prevent a gap in RGP 54 coverage. While the existing RGP 54 is used by residents and other entities, a number of factors limited its use. These factors include the individual project volume and depth restrictions being Mr. Chris Miller, City of Newport Beach October 18, 2012 Page 2 insufficient for many needs, the prohibition on dredging in the vicinity of eelgrass, and the lack of provisions authorizing limited structural improvements. As a result, fewer applicants used the existing RGP 54 over time. The following sections summarize the current RGP 54 structure along with two options for a revised structure that may prove more beneficial to the City and its residents. A table comparing all three options is provided as Attachment A. RGP 54 OPTIONS Maintain Existing RGP 54 Under the existing RGP 54, individual property owners can undertake small dredging projects to maintain a depth of -7 feet mean lower low water (MLLW) plus 1 foot of allowable over -depth to berth vessels at existing piers, docks, and bulkhead structures. Based on projects conducted in 2004 through 2010, the average project volume was 335 cubic yards (cy) per site, with annual totals ranging from 990 to 10,903 cy. RGP 54 is renewed every 5 years and most recently expired in November 2011. The regulatory agencies are currently reviewing applications to reauthorize RGP 54, and issuance of their approvals is anticipated in late November 2012. The City has sought approval from the regulatory agencies to use federal channel data from sampling conducted in spring 2009, where appropriate, to characterize areas of Newport Bay that would be valid through March 2014. Following the Lower Newport Bay federal dredging project (currently underway), the City would conduct a full Tier 3 evaluation of all RGP 54 areas, with data remaining valid for 5 years following the time of sampling. The City presented a proposed Sampling and Analysis Plan (SAP) to the Dredged Material Management Team (DMMT) in February 2011, and the DMMT approved a revised SAP in April 2011. The City proposed that the reauthorization of RGP 54 be effective for a term of 5 years, with the understanding that the approved 2011 SAP be implemented and the results approved by the DMMT before dredging activities proposed as part of this permit application can proceed beyond March 2014. Mr. Chris Miller, City of Newport Beach October 18, 2012 Page 3 The RGP 54 currently being renewed includes: • Dredging operations authorized are limited to areas of Upper and Lower Newport Bay where sediment characterization data have been reviewed and approved by the DMMT. • Minor dock improvement work is not allowed. • Dredging operations are limited to -7 feet MLLW plus 1 foot of allowable over -depth between the pierhead and bulkhead lines. • All dredging and disposal operations require sediment grain size analysis to qualify for beach and ocean disposal. Sediment suitable for beach disposal can be disposed of close to the authorized dredge site. Sediment unsuitable for beach disposal will be disposed at a U.S. Environmental Protection Agency (USEPA)- approved ocean disposal site (e.g., LA -3). • Dredging quantities are limited to 1,000 cy per project with an annual cumulative dredge volume of 20,000 cy. • RGP 54 does not apply where eelgrass is found within 15 feet or less (in any direction) from the proposed dredge or dredge material disposal footprints. • Every 5 years, the City retains responsibility for completing a bay -wide sediment characterization effort. (Given the substantial volume of historical sediment testing data amassed by the City, the DMMT may be amenable to a reduced testing effort on future SAPs. This approach is consistent with how ongoing maintenance characterization is conducted at some ports.)The City submits files to the regulatory agencies monthly and waits for a response from the agencies on every project. The agency response time varies from 30 days to several months. Potential costs associated with maintaining RGP 54 in its currently proposed form include: • A periodic bay -wide Tier 3 evaluation of all RGP 54 areas every 5 years. The DMMT may allow a Tier 1 analysis in place of the Tier 3 evaluation at a rough estimated cost of $350,000 - $400,000. • RGP 54 would need to be renewed in fall 2017, requiring submittal of requests to the agencies. • Administrative costs — To be determined. Mr. Chris Miller, City of Newport Beach October 18, 2012 Option 1: City Sediment Characterization The City would allow the current version of RGP 54 to lapse and submit permit applications to the regulatory agencies for a new RGP that would include rolling, focused sediment characterization efforts that would divide the bay into units based on historical data to guide sediment testing. This approach would reduce the intensity and area of the previous sediment characterization and, therefore, decrease sampling costs over the life of the RGP. In addition, several of the factors limiting use of the existing RGP 54 would be resolved through proposed modification of the terms of the RGP. Key revisions include eliminating the individual project dredging volume limit, increasing the allowable dredging depth, and removing the prohibition on dredging near eelgrass. Specifics proposed under this option include: • Dredging operations would be limited to areas of Upper and Lower Newport Bay where sediment characterization data have been reviewed and approved by the DMMT. • Dredging operations limited to -9 feet MLLW plus 1 foot of allowable over -depth between the pierhead and bulkhead lines. (The regulatory agencies will need to confirm the RGP is for maintenance and historical depths in the bay will need to be verified; however, increasing the depth limitation will broaden the appeal of the RGP. This item may be negotiable with the agencies, because the dredging deeper may mean fewer separate individual permits they are likely to receive.) • All dredging and disposal operations require sediment grain size analysis to qualify for beach and ocean disposal. Sediment suitable for beach disposal can be disposed of close to the authorized dredge site. Sediment unsuitable for beach disposal would be disposed at an approved ocean disposal site (e.g., LA -3). • No individual project dredging quantity limits with an annual cumulative dredge volume of increased 150,000 cy. • Impacts to eelgrass would be allowed and addressed through the City's bay -wide eelgrass management program. • The City retains responsibility for completing rolling physical and chemical testing for biological constituents of historical concern. Application review and approval would be processed under a tiered approach in which authority is delegated to the Mr. Chris Miller, City of Newport Beach October 18, 2012 Page 5 City. The City would approve small projects without agency review, allow a 30 -day review by regulatory agencies for medium projects, await approval from agencies for large projects. • In -kind repair and replacement of docks, bulkheads, and piles would be allowed and tracked through the development of a bay -wide program similar to the eelgrass management program. Potential costs associated with this option include: • Rolling focused characterization surveys at a rough estimated cost of $50,000- $100,000 Permitting costs — $60,000 - $80,000 • Administrative Costs — To be determined Option 2: User Sediment Characterization The City would allow the current RGP 54 to lapse and submit permit applications to the regulatory agencies for a new RGP that would be structured such that individual property owners would be responsible for their own sediment characterization. This approach has proven successful in other municipalities, including the City of Long Beach. Key differences between this approach and the current RGP 54 include eliminating the individual project dredging volume limit, increasing the allowable dredging depth, and removing the prohibition on dredging near eelgrass. The critical difference between this approach and Option 1 is that under this approach the City would no longer be responsible for conducting bay -wide sediment characterization efforts. Specifics proposed under this option include: • Dredging operations would be limited to areas of Upper and Lower Newport Bay where sediment characterization data have been reviewed and approved by the DMMT. • Dredging operations limited to -9 feet MLLW plus 1 of allowable over -depth between the pierhead and bulkhead lines. (The regulatory agencies will need to confirm the RGP is for maintenance and historical depths in the bay will need to be verified; however, increasing the depth limitation will broaden the appeal of the RGP. This Mr. Chris Miller, City of Newport Beach October 18, 2012 Page 6 item may be negotiable with the agencies, because the dredging deeper may mean fewer separate individual permits they are likely to receive.) • All dredging and disposal operations require sediment grain size analysis to qualify for beach and ocean disposal. Sediment suitable for beach disposal can be disposed of close to the authorized dredge site. Sediment unsuitable for beach disposal would be disposed at an approved ocean disposal site (e.g., LA -3). • Impacts to eelgrass would be allowed and addressed through City's bay -wide eelgrass management program. • Individual property owner will be responsibility for sediment testing. The City would develop a SAP for review and approval by the DMMT, which individual applicants could then follow. The SAP would take into account historical data from different parts of the bay. Individual property owners would be required to submit the results of their Sampling and Analysis Report (SAR) to the DMMT for review and approval. • Annual cumulative dredge volume would be increased to 150,000 cy. • Application review and approval would be processed under a tiered approach in which authority is delegated to the City. The City would approve small projects without agency review, allow a 30 -day review by regulatory agencies for medium projects, and await approval from agencies for large projects. • In -kind repair and replacement of docks, bulkheads, and piles would be allowed and tracked through the development of a bay -wide program similar to the eelgrass management program. Potential costs associated with this option include: • City permitting costs, including Draft Master SAP — $80,000 to $100,000 • Individual property owner sediment testing — approximately $50,000 to $60,000 • Administrative costs OTHER OPTIONS CONSIDERED BUT DISMISSED Two other approaches in which the City would abandon the RGP altogether were considered and dismissed. In the most extreme version of this option, the City would no longer provide any mechanism to assist property owners in conducting maintenance Mr. Chris Miller, City of Newport Beach October 18, 2012 Page 7 dredging. This approach was dismissed as not meeting the City's goal. Another version of this option would be for the City to continue to conduct periodic bay -wide sediment characterization efforts to produce data that could be used by property owners as they pursue their own agency approvals. This approach was dismissed as being costly to the City while not being user - friendly to property owners. Comparison of Feasible Options for RGP Implementation Page I of2 Option 1— City Sediment Option 2 — User Sediment RGP 54 Maintain Existing RGP 54 Characterization Characterization Annual 20,000 cy 150,000 cy 150,000 cy Maximum Volume Individual 1,000 cy None Location specific — the harbor may be Project Volume divided based on guidelines about Limit areas and depths Maximum Minimum of -9 feet MLLW plus 1 foot Minimum of -9 feet MLLW plus 1 Minimum of -9 feet MLLW plus 1 foot Dredge Depth overdredge; deeper if can be supported by foot overdredge; deeper if can be overdredge; deeper if can be supported historical design depth supported by historical design depth by historical design depth Sediment Periodic bay -wide characterization Rolling, focused characterization in Individual property owner responsibility Testing which the bay is divided into units. to conduct sediment characterization. Historical data would be used to City develops template sediment SAP guide sediment testing. for review and approval by the DMMT, which applicants could then follow. The SAP would take into account historical data from different parts of the bay. Individual property owners would be required to submit the results of their sediment sampling to the DMMT for review and approval. Eelgrass No impacts allowed Address impacts addressed through Address impacts addressed through City's bay -wide eelgrass program City's bay -wide eelgrass program Structures No maintenance allowed Potential for in -kind repair and In -kind repair and replacement of replacement of docks, bulkheads, docks, bulkheads, and piles. and piles Will be further evaluated on the need and reaction from the regulatory agencies to include this as part of a new RGP Page I of2 Comparison of Feasible Options for RGP Implementation RGP 54 Maintain Existing RGP 54 Option 1— City Sediment Option 2 — User Sediment Characterization Characterization Application City submits files to agencies monthly and Tiered approach in which authority Tiered approach in which authority is Review waits for agency verification (varies from is delegated to the City to approve delegated to City to approve small 30 days to several months) small projects without agency projects without agency review; allows review; allows 30 -day review by 30 -day review by agencies for medium agencies for medium projects; projects; awaits approval from agencies awaits approval from agencies for for large projects. This assumes that large projects individual applicants would obtain DMMT approval for sediment disposal prior to submitting project information to the City. Shading Not applicable Develop bay -wide program to track Develop bay -wide program to track shading changes similar to eelgrass shading changes similar to eelgrass management program management program Water Quality Basic monitoring required by Regional Tiered approach to monitoring in Tiered approach to monitoring in which Monitoring Water Quality Control Board which monitoring is not required for monitoring is not required for small small projects and basic frameworks projects and basic frameworks are are developed for medium and large developed for medium and large projects projects Applicable Users Anyone within the permit area Anyone within the permit area Anyone within the permit area Disposal Beach nourishment, ocean disposal, upland Beach nourishment, ocean disposal, Beach nourishment, ocean disposal, disposal or confined disposal facility upland disposal upland disposal SLC Dredging Valid through 2015 A new lease will be required for A new lease will be required for work Lease work within submerged tidelands within submerged tidelands granted to granted to the County of Orange the County of Orange Page 2 of2