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06-0626_OC TRANSPORTATION AUTHORITY_License AgreementE E CITY OF SAN JUAN CAPISTRANO LICENSE AGREEMENT Substructure Improvements for the Trabuco Creek Bridge at Mile Post 195.6 — Phase I of II Jti THIS LICENSE AGREEMENT is made this a day of - 2006, by and between the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "CITY" and the ORANGE COUNTY TRANSPORTATION AUTHORITY ("OCTA"), and the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY ("SCRRA"), hereinafter referred to as "LICENSEE" WHEREAS, OCTA is a joint entity with SCRRA; and, WHEREAS, LICENSEE wishes to make improvements in two (2) phases to the Trabuco Creek bridge, a two (2) span, one -hundred and eighty-one (181) foot long deck plate girder bridge, located at milepost 195.8; and, WHEREAS, This bridge is approximately eighty (80) years old and the girders are approaching the end of their design service lifetime, with marginal allowance for new and heavier train axle loads to pass over the bridge safely; and, WHEREAS, LICENSEE desires to access their bridge substructure via the City's land, more particularly described as the northwest open space ("NWOS"), APN 121-050-19 and APN 121-050-21 and as depicted on the site plan attached as Exhibit "A".; and, WHEREAS, LICENSEE would also like to stage construction equipment, personnel, and supplies on a portion of the NWOS north of the Silverado Senior Living facility; and, WHEREAS, LICENSEE desires to use portions of the City property to facilitate the passage of vehicle and workers, to park and stage vehicles, equipment, and supplies ("Permitted Activities") and the City in the spirit of interjurisdictional cooperation desires to grant LICENSEE permission to engage in Permitted Activities on the property. WHEREAS, The first phase of work will consist of; encasing the existing cast -in-place substructure with a 6" layer of concrete to prolong the service life of the existing substructure, and making related improvements; and, WHEREAS, The second phase of work requires LICENSEE to replace the existing steel girders and will require relocation of certain existing utilities; and, NOW, THEREFORE BE IT DETERMINED, City and LICENSEE agree as follows: 1. Grant of License The CITY hereby grants to LICENSEE a license right to use a portion of City - owned open space land (more particularly shown on the plan titled "Trabuco Creek Bridge Project Temporary Impact Areas," attached hereto as Exhibit "B", and incorporated herein by reference) for the purpose of completing this work, subject to all of the conditions contained within this License Agreement. 2. Property to be Licensed LICENSEE's access to the Trabuco Bridge area shall be limited to the south end of the open space property, as shown on Exhibit "C", attached and incorporated herein by reference and more specifically defined as APN 121-050-21. It is expressly understood that this license agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the property to LICENSEE. LICENSEE may enter into the south end of the NWOS property, as shown on Exhibit "C", more specifically defined as APN 121-050-19, attached and incorporated herein by reference. The LICENSEE may enter into APN 121-050- 19 via the construction access as described in APN 121-050-21. The use of the southern portion of APN 121-050-19 shall be limited to the construction of improvements to and near the Trabuco Creek Bridge, and as shown on plans entitled "Trabuco Creek Bridge at MP195.8 Superstructure Replacement", which are available for review in the City's Public Works Department. 3. Time of Work Hours of construction work shall be restricted to 7:00 a.m. to 4:00 p.m., weekdays, and shall exclude weekends, except that delivery of certain materials may be further restricted by the City Engineer based on traffic impacts as outlined below. All construction will be completed within twelve (12) weeks. Night and weekend work shall be prohibited. 4. Water Quality The San Diego Regional Water Quality Control Board (RWQCB) has issued a permit which governs stormwater and non-stormwater discharges resulting from areas owned and operated by the County of Orange, Orange County Flood Control District and incorporated cities of Orange County (collectively referred to as Permittees). The RWQCB permit is a National Pollutant Discharge Elimination System (NPDES) Permit No. R9-2002-0001, respectively. A copy of the RWQCB permit is available in the Public Works Department for review. 0 0 In order to comply with the Permit requirements, the Permittees have developed a Drainage Area Management Plan (DAMP) which contains Model Maintenance Procedures with Best Management Practices (BMPs) that parties conducting the municipal activities must adhere to. These Model Maintenance Procedures apply to any party conducting municipal activities and contain pollution prevention and source control techniques to minimize the impact of those activities upon dry - weather urban runoff, stormwater runoff and receiving water quality. Work performed under this License Agreement shall conform to the permit requirements, the DAMP, the City's Local Implementation Plan (LIP), and the Model Maintenance Procedures and must be performed as described within all applicable Model Maintenance Procedures. LICENSEE and/or its Contractor shall fully understand the Model Maintenance Procedures applicable to activities that are being conducted under this License Agreement prior to conducting them and maintain copies of the Model Maintenance Procedures throughout the License Agreement duration. LICENSEE shall adhere to the Best Management Practices (BMP) described in the Water Pollution Control Program developed for the project, and install any other BMPs deemed necessary by the City of San Juan Capistrano. Evaluation of activities subject to DAMP requirements performed under this License Agreement will be conducted to verify compliance with DAMP requirements and may be required through self-evaluation of LICENSEE and/or its Contractor as determined by the City. All work within the CITY'S property shall be reviewed and approved by the CITY's representative responsible for water quality issues. 5. Trail System As consideration for the rights given hereunder, Licensee agrees to modify project design plan, pursuant to City's request to accommodate one (1) twelve (12) foot wide bench, suitable for hiking, bicycling, and equestrian use. This bench shall be adjacent to the south abutment. 6. Permits: LICENSEE shall obtain and adhere to the amended permit requirements in order to perform work in areas under the jurisdiction of California Department of Fish & Game (DFG) and Army Corps of Engineers (ACOE). Permits to LICENSEE are attached and incorporated to this License Agreement as Exhibit "D", and conditions set in these permits are also a requirement of this License Agreement. • Department of Fish and Game • Army Corps of Engineers Arroyo Trabuco Conservation Mitigation Area LICENSEE has obtained the following permits for this project: • 0 • Army Corps of Engineers Section 404 Nationwide Permit • California Department of Fish and Game Streambed Alteration Agreement • California Regional Water Quality Control Board Section 401 Water Quality Certification Copies of these documents have been provided to the City and are attached and incorporated herein to this Agreement as Exhibit "D". LICENSEE shall mitigate for all impacts on City -owned environmentally sensitive habitat areas in accordance with these agreements. An inspection of the area following completion of the bridge work shall be conducted. Construction and Demolition Recycling: The City of San Juan Capistrano has established a Construction and Demolition (C&D) Waste Recycling Program pursuant to ordinance No. 887 to help in diverting C&D waste from landfills and also to comply with mandates of the California Integrated Waste Management Board (CIWMB). The City's diversion requirement is 50%, which means that certain projects are required to divert 50% of the total C&D waste tonnage at a project site away from landfills. Prior to starting any construction, LICENSEE shall obtain a permit and submit all necessary forms prior to obtaining the permit, as described in the ordinance, and at project completion, submit a summary report indicating how C&D were diverted. LICENSEE shall pay all related fees and post appropriate deposits. The City has a solid waste franchise agreement with CR&R. No other contractor can provide solid waste services in the City. LICENSEE shall adhere to the City's franchise agreement. S. Conditions of Entry Prior to, and as a condition precedent to performance of work, the following conditions must be satisfied: 1. Compliance with Laws. LICENSEE shall, in all activities undertaken pursuant to this license agreement, comply, and shall cause its contractors, agents and employees to comply with all federal, state, and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. 2. Indemnification Except for CITY's sole negligence, LICENSEE hereby agrees to indemnify, defend, assume all liability for and hold harmless the CITY and its officers, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities, damages to property, or injuries to persons, which may be caused by LICENSEE's activities pursuant to work performed on CITY's property, or arising out of or in connection with such activities, whether such activities or performance thereof is by LICENSEE or anyone directly or indirectly employed under contract with LICENSEE, and whether such damage or claim 0 0 shall accrue or be discovered before or after the termination of this License Agreement. 3. Assumption of Risk. To the maximum extent allowed by law, LICENSEE assumes any and all risk of loss or damage to property (a) which belongs to CITY, or is in the care or custody of CITY; and (b) which is on the property, resulting from LICENSEE's operations pursuant to this agreement. LICENSEE's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the CITY's property, accident, fire or other casualty on the CITY's property, or electrical discharge, noise or vibration resulting from CITY's operations on or near the property. However, LICENSEE's assumption of risk shall not extend to damage to such property resulting from CITY'S (or CITY'S contractors' or representatives') gross negligence or willful misconduct. The provisions of this section shall survive the termination of this License Agreement. 9. Insurance. CITY shall accept LICENSEE's current self insurance/insurance programs for the purposes of this Agreement. Comprehensive General Liabilitv LICENSEE shall require its contractor to maintain in full force and effect comprehensive general liability coverage, including premises operations, products/completed operations, broad form property damage and blanket contractual liability in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any occurrence/not limited to contractual period; and $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 2. Comprehensive Automobile Liability LICENSEE shall require its contractor to maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any occurrence/not limited to contract; and $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. Worker's Compensation If LICENSEE employs employees to perform services under this 0 License Agreement, LICENSEE shall obtain and maintain, during the life of the License Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. These policies shall not terminate, nor shall they be canceled nor the coverage reduced until after thirty (30) days' written notice is given to the City. LICENSEE shall require its contractor to provide an endorsement to City establishing that City has been legally added as an additional insured to the insurance policies required under this License Agreement. 10. Notification LICENSEE shall, in a timely manner, sufficiently notify and inform all affected residents and businesses of the construction work. All announcements, letters, media releases, postings, etc. shall be reviewed and approved by the CITY prior to distribution. 11. Traffic LICENSEE is required to obtain and adhere to requirements set forth in an Oversized Load Permit, a Haul Route Permit and an Encroachment Permit, as may be necessary to perform the described work. Additionally, LICENSEE is to provide the CITY with a list of vehicles that will be accessing the project site and at what frequency. The CITY reserves the right to limit and/or restrict vehicle access to the project site based on traffic conditions. All construction delivery vehicles shall avoid travel on City streets during the hours from 7:00 a.m. — 8:30 a.m. and 2:00 p.m. — 6:00 p.m., Monday through Friday. 12. Sta-ging Area A staging area in the NWOS north of the Silverado Senior Living facility shall be used as lay -down yard and shall provide access to the work site. The large crane, which will be used for Phase II to erect the bridge girder, will be staged here as well. 13. Safety LICENSEE shall provide temporary construction fencing around the staging area, and LICENSEE shall adhere to safety requirements as directed by the CITY. These requirements shall consist of the following: • Provision of directional signs for construction traffic 14. Cultural Resource Protection LICENSEE shall create a temporary access ramp that will be located between the staging area and Trabuco Creek Bridge. This temporary ramp shall measure thirty (30) feet by one hundred one (101) feet and four and a half feet deep and 0 0 will encompass approximately 0.06 acres. LICENSEE shall lay a fabric barrier down on existing soil to protect cultural resources. Soil shall be imported in from an outside source to build a manmade ramp to the bridge. This ramp will be used throughout the duration of the project, and upon exit, imported soil shall be excavated down to the fabric barrier and removed. During any boring or excavation, LICENSEE shall retain an archeologist who is certified through the Register of Professional Archeologist (RPA) to monitor such activity for potential cultural resources. 15. Construction LICENSEE shall obtain, complete, and adhere to all requirements set forth in the following documents: • Construction and Demolition Permit (Section 7) • Waste Reduction and Recycling Plan (Section 7) To minimize traffic impacts and road safety impacts, LICENSEE shall deliver the bridge girders for Phase Ii to the project site by railcar. 16. Term This License Agreement shall continue in full force and effect until both phases of the project have been completed and all outstanding issues resolved to the satisfactory agreement of all parties or by December 31, 2006, whichever is the sooner. 17. Protection of Utilities The LICENSEE shall be responsible for ensuring the protection of existing utilities and facilities, being a City owned utility or other utility company's facility, and replace in kind if said utility or facility is damaged in any manner. This includes the protection and replacement in kind of all street improvements the LICENSEE may be utilizing for access to the project. 18. Revocation of License. City and LICENSEE shall have the right to terminate this License Agreement without cause by giving thirty (30) days' advance written notice of termination to the other party. In addition, this License Agreement may be terminated for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the License Agreement may be terminated subsequent to the ten (10) day cure period. 19. Liens. LICENSEE shall keep the Property free and clear of all mechanics, materialmen's and other liens resulting from Permitted Activities. 20. No Oral Modifications. 0 0 No alternatives or variations of this Agreement shall be valid or binding unless made in writing and signed by the parties hereto. 21. Entire Agreement This License Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. DATED this day of JU O � 2006 at San Juan Capistrano. ATTEST: CITY OF SAN JUAN CAPISTRANO: By. &rMet R. Monahan, City Clerk David M.'Serdlin, Mayor AS TO FORM: John R. Shaw, Attorney 0 JIM COUNTY >RTATION AUTHORITY stt�r+ieg�-6:�+�aar�iucef P�tuc c•T�Vlae,P� Executive Director of Gemtr� Convn Scrvi APPRO ED AS TO FORM: By: Kennard' R. Smart, Jr., Gq(ej Counsel FORINIA REGIONAL RAIL AUTHORITY AS TO FORM: Los Angeles County County Counsel By: County Counsel .a . ' "F Y •a. �r 1:2,400 is Feet 100 200 400 0 EXHIBIT "C" Exhibit D D1 Streambed Alteration Agreement No. 1600-2004-0060-R5 D2 Streambed Alteration Agreement No. R5-2004-0060, Amendment No. 1 D3 Department of the Army —Nationwide Permit NW14 and NW33 D4 California Regional Water Quality Control Board, Clean Water Act, Section 401 EXHIBIT "D" 1 j 0 0 n 0 0 L STATE OF CALIFORNIA -THE RESOURCES AGENCY ARNOLD SCHWARZENEGGEn Governor DEPARTMENT OF FISH AND GAME South Coast Region 4949 Viewridge Avenue - r Diego, California 92123 8) 467-4201 FAX (858) 467-4235 April 16, 2004 Mr. Chuck Steffcnsmeier, P.E. Southern California Regional Rail Authority 275 West Hospitality Lane, Suite 300 San Bernardino, California 91.408 Dear Mr. Steffensmeier: Enclosed is Streambed Alteration Agreement No. 1600-2004-0060-R5 that authorizes work on the Southern California Regional Rail Bridge Project, impacting Arroyo'1'rabuco Creek in Orange County. This action is authorized under Section 1600 of the Fish and Game Code and has been approved by the California Department of Fish and Game. Pursuant to the requirements of the California Environmental Quality Act (CEQA), the Department filed a Notice of Exemption (NOE) on the project on_ o� oo Under CEQA regulations, the project has a 35 -day statute of limitations oI court c rallf enges of the Department's approval under CEQA. The Department believes that the project fully meets the requirements of the Nish and Game Code and CEQA. I lowever, if court challenges on the NOE are received during the 35 -day period, then an additional review or even modification of the project may be required. If no comments are received during the 35 -day period, then any subsequent comments need not he responded to. This Information is provided to you so that if you choose to undertake the project prior to the close of the 35 -day period, you do so with the knowledge that additional actions may be required based on the results of any court challenges that are filed during that period. Please contact Donna Cobb at (858) 637-5510 if you have any questions regarding the Sticambed Alteration Agreement, Sincerely, C.F. RXYSBROOK Regional Manager Enclosure cc: Dmuta Cobb 0 CALIFORNIA DEPARTMENT OF FISH AND GAME 4949 Viewridge Avenue San Diego, California 92123 Notification No. 1600-2004.0060-R5 _ (sage --f .. of 8-- _ ... — —----...- — — ---- ------ - — AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION THIS AGREEMENT, entered into between the State of California, Department of Fish and Game, hereinafter called the Department, and Southern California Regional Rail Authority (P.O.C. Mr. Chuck Steffensmeier), 275 West Hospitality Lane, Suite 300, San Bernardino, California 92408, Phone (909) 806-8006, Fax (909) 806-8099, hereinafter called the Operator, is as follows: WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator, on the 5' day of February, 2004, notified the Department that they intend to divert or obstruct the natural flow of, or change the bed, channel, or bank of, or use material from the streambed(s) of, the following water(s): Arroyo Trabuco Creek, tributary to San Juan Creek, Orange County, California, Section 36, l ownship 7S, Range 8W; USGS Map San Juan Caoistrano 7.5; and WHEREAS, the Department has determined that such operations may substantially adversely affect those existing fish and wildlife resources within Arroyo Trabuco Creek tributary to San Juan Creek, specifically identified as follows: Amphibians: Pacific slender salamander, western toad, and Pacific treefrog; Reptiles: southwestern pond turtle, western fence lizard, side -blotched lizard, coastal whiptail, California kingsnake, and gopher snake; Fishes: southern steelhead trout, and various other local fish; Birds: least Bell's vireo, southwestern willow flycatcher, yellow -breasted chat, white-tailed kite, red-tailed hawk, red -shouldered hawk, Cooper's hawk, American kestrel, mourning dove, wrens, California towhee, California quail, wrentit, trukey vulture, swallows, common raven, northern mockingbird, owls, killdeer, Anna's hummingbird, great blue heron, great egret, snowy egret, woodpeckers, swifts, swallows, western kingbird, wrens, vireos, grosbeaks, orioles, waxbills, California horned lark, finches, black phoebe, warblers, sparrows, numerous other songbirds and shorebirds; Mammals: longtail weasel, coyote, raccoon. California ground squirrel, Virginia opossum, brush rabbit, Audubon cottontail, Botta's pocket gopher, striped skunk, mice, and bats; Riparian vegetation which provides habitat for those species: willow, mulefat, cattails; and all other aquatic and wildlife resources, in the area. THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources during the Operator's work. The Operator hereby agrees to accept the following measures/conditions as part of the proposed work. If the Operator's work changes from that stated in the notification specified above, this Agreement is no longer valid and a new notification shall be submitted to the Department of Fish and Game. Failure to comply with the provisions of this Agreement and with other pertinent code sections, including but not limited to Fish and Game Code Sections 5650, 5652, 5937, and 5948, may result in prosecution. Nothing in this Agreement authorizes the Operator to trespass on any land or property, nor does it relieve the Operator of responsibility for compliance with applicable federal, state, or local laws or ordinances. A consummated Agreement does not constitute Department of Fish and Game endorsement of the proposed operation, or assure the Department's concurrence with permits required from other agencies. E Page 2 of 8 E STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 .1_.. Thefollowing-provisions. constitute the -limn -of activities agreed to-and4esolved-by-th46 Agreement. --- - The signing of this Agreement does not imply that the Operator is precluded from doing other activities at the site. However, activities not specifically agreed to and resolved by this Agreement shall be subject to separate notification pursuant to Fish and .Game Code Sections 1600 et seq. PROJECT DESCRIPTION: 2. The Operator proposes to alter the streambed and banks through the proposed rehabilitation of the Trabuco Creek Railroad Bridge located in the City of San Juan Capistrano. The major components of this rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of 8 -inch thick reinforced concrete encasement. The existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will be required within the streambed during construction of the 8-inc'n encasement. Lifting equipment Will be required within the streambed during placement of the bridge superstructure. 3. The agreed work includes activities associated with No. 2 above. The project area is located in the Arroyo Trabuco Creek, tributary to San Juan Creek, in Orange County. Specific work areas and mitigation measures are described on/in the plans and documents (Notification of Lake or 5treambed Alteration, Metrolink Commuter Rail System: Hydraulic Analysis for Aliso Creek and Trabuco Creek, dated January 26, 2004, and Notice of Exemption, adopted September 13, 1991) submitted by the Operator, and shall be implemented as proposed unless directed differently by this agreement. IMPACTS: 4. The Operator shall not Impact more than 0.037 acre of stream channel. Approximately 0.003 acre are permanent impacts, and approximately 0.034 acre are temporary impacts. MITIGATION: 5 The Operator shall mitigate 0.0112 acre of impacts to riparian habitat as outlined in the Proposed Mitigation Plan for the Trabuco Creek Fish Access Project, submitted by the Southern California Regional Rail Authority, dated August 5, 2003; and any subsequent revisions approved in writing by the Department. BIOLOGICAL SURVEYS AND TIME RESTRICTIONS: 6 The Operator shall not remove vegetation within the stream from March 15"' to July 31" to avoid impacts to nesting birds. However, work may occur during this time if a qualified biologist conducts a minimum of three days of surveys for nesting birds within seven days prior to the vegetation removal, and at least one survey must be within three days prior to the vegetation removal, to ensure no nesting birds shall be impacted by the project. These surveys shall include the areas within 200 feet of the edge of the proposed impact areas, Documentation of findings, including a negative finding must be submitted to the Department for review and concurrence. If no breeding/nesting birds are observed and concurrence has been received from the Department, site preparation and construction activities may begin. if breeding activities and/or an active bird nest is located and concurrence has been received from the Department, the breeding habitaUnesl site shall be fenced a minimum of 100 feet (200 feet for raptors) in all directions, and this area shall not be disturbed until the nest becomes inactive, the young have fledged, the young are no longer being fed by the parents, the young have left the area, and the young will no longer be impacted by the project. 7. Prior to construction activities, the area shall be surveyed for southwestern pond turtle by a qualified on-site biologist to ensure that no direct or indirect impacts shall occur to southwestern pond turtle as a result of the proposed project. If turtles are present, the specialist shall submit a Pond 0 Page 3 of 8 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 -- Ttirtle Mitigation Plan tothe- Department,-endit- shall -include complete -avoidance measures -for Department review and approval, prior to project initiation. 8. Prior to work commencing at the bridge site, the Operator shall have a biologist survey the bridge structure for bats a minimum of 3 times, seven -days apart; unless a positive presence is determined then surveys can be ended. 9. If bats are believed to occupy a structure, a qualified bat biologist shall be consulted to determine the species and to develop measures to protect the bats to supplement the conditions contained in this agreement. If loss of significant bat roosting habitat occurs due to the implementation of the project, protection measures will include the installation of roosting structures below the deck, at Department approved locations. The Department shall be provided all supplemental protection measures for its review and written approval. 10. The Operator shall avoid work March 15" through September 1" on bridges when it would disturb nesting swallows. If such a condition cannot be met, then prior to March 1" of each year, the Operator shall remove all existing nests which would be destroyed by the project. The Operator shall continue to discourage new nest building in places where they would be disturbed using methods approved by Caltrans and the Department. Nest removal and hazing must be repeated at least weekly until construction begins or until a swallow exclusion device is installed. The exclusion device must provide a space of four to six inches for the passage of snakes at the bottom edge. Nests must be discouraged throughout the term of the project. At no time shall occupied nests be destroyed as a result of project construction. 11. The Operator shall avoid work within the stream from October 15"' to June 15" to avoid impacts to fish migration and smolt movement. 12. If work is performed within the stream channel during the winter storm period the Operator shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work activities shall involve the securing of the site, so as no materials may enter or be washed into the stream. The site shall be completely secured one (1) day prior to precipitation, unless prior written approval has been provided by the Department. During period of precipitation, no construction activities may occur; activities involving the preventing of materials from entering the stream or being washed downstream may be conducted. 'Iv. In the event inert one ( i) incil of preclplialion is accumulatad wfhllr, the watershed, nc activities shall occur on site for two weeks, or until the flows have receded and the moisture content of the soils has stabilized. VEGETATION R MOVAL AND HABITAT PROTECTION: 14. Disturbance, removal or trimming of vegetation for equipment access shall not exceed the limits approved by the Department. 15. Due to the presence of native riparian vegetation, all vegetation clearing shall be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shall be adequately flagged to prevent damage to adjacent riparian habitat, and to ensure that direct and indirect impacts to fish or wildlife, in particular birds and pond turtles, are avoided. 16. The work area shall be identified to all workers, as represented in plans. Native vegetation shall not be removed or intentionally damaged or beyond the designated work area 17. Except where provided for within this agreement, the removal of soil and native vegetation from the streambed or streambanks is prohibited without prior written approval from the Department. 18. No direct or indirect impacts shall occur to any threatened or endangered species as a result of implementing the project or the project's mitigation activities. If any threatened or endangered species could be impacted by the work proposed, U.S. Fish and Wildlife Service Page 4 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 -- (USFWS) protoeel suweys shall-beeortdueted prior -to it pfemenE{rtg the prefeet; or the prejeet4-- - - mitigation activities, If necessary, the Operator shall obtain the required state and federal threatened and endangered species permits. If there is no USFWS survey protocol for a particular listed species, the Department shall be consulted to determine appropriate survey procedures. The Department shall be provided copies of survey reports prior to project implementation, and prior to the implementation of mitigation activities. This agreement does not authorize the take of any federal or slate threatened or endangered species. 19. If any sensitive species are observed in project surveys, the Operator shall cause a California Native Species Field Survey Form and survey map to be submitted to the Natural Diversity Database (NDDB) within five working days of the sightings, and prior to commencement of work. The form is available on-line at htto://www.dfg.ca.gov/whdab/natspec.pdf, and instructions for completing the form are available at htto://www.dfg.ca.gov/whdab/fsfinst odf, The form and survey map shall be sent to the Department of Fish and Game, California Natural Diversity Database, 1807 13th Street, Suite 202, Sacramento, CA 95814, with copies sent to the Department at 4949 Viewridge Avenue, San Diego, CA 9212.3, Attn: Streambed Alteration Program - SAA #1600-2004-0060-R5. 20. All vegetation shall be removed by hand or by hand -operated tools. 21. A qualified biological monitor shall be present and/or shall examine the site and mark native vegetation that is to be trimmed with flagging to ensure impacts are within the conditions of this Agreement. 22. No alteration of the streambed, bank or channel shall occur, except as otherwise permitted in Ihis Agreement. The removal of soil, native vegetation and vegetative debris from the streambed or stream banks is prohibited, except as otherwise specified within this Agreement; however, the Operator may remove all human generated debris, garbage and trash. INSTREAM STRUCTURES AND FLOW DIVERSIONS 23. Installation of bridges, culverts, or other structures shall be such that water flow is not impaired. Bottoms of temporary culverts shall be placed at stream channel grade and bottoms of permanent culverts shall be placed at or below stream channel grade. r­menran/ ^.'wort.^ sh8" !'^_ F„'1C`/?:! ^nM t,:) the `n:nter storm period (first winter rain). 25. Any temporary dam or other artificial obstruction constructed shall only be built from materials such as clean gravel which will cause little or no siltation, and shall be approved by the Department prior to construction. 26. When any dam or other artificial obstruction is being constructed, maintained, or placed in operation, sufficient water shall at all times be allowed to pass downstream to maintain aquatic life below the dam pursuant to Fish and Game Code section 5937. 27. An adequate fsh/aquatic passage facility shall be incorporated into any barrier that obstructs fish/aquatic passage. 28. Plans for design of concrete sills and other features that could potentially impede fishfaquatic migrations shall be approved by the Department. 29. Permanent structures shall be designed, constructed and maintained such that they do not constitute a barrier to upstream or downstream movement of aquatic life, or cause an avoidance reaction by fish that impedes their upstream or downstream movement. This includes but is not invited to the supply of water at an appropriate depth, temperature, and velocity to facilitate upstream and downstream fish migration. If any aspect of the proposed project results in a long term reduction in fish movement, the Operator shall be responsible for all future activities and expenditures necessary (as determined by the Department) to secure passage of fish across the structure. Page 5 of 5 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 30. No equipment shall be operated in ponded or flowing areas. When work in a flowing stream Is unavoidable, the entire stream flow shall be diverted around the work area by a barrier, temporary culvert, new channel, or other means approved by the Department. Location of the upstream and downstream diversion points shall be approved by the Department. Construction of the barrier and/or the new channel shall normally begin in the downstream area and continue in an upstream direction, and the flow shall be diverted only when construction of the diversion is completed. Channel bank or barrier construction shall be adequate to prevent seepage into or from the work area. Diversion berms shall be constructed of onsite alluvium of low silt content, inflatable dams, sand bags, or other approved materials. Channel banks or barriers shall not be made of earth or other substances subject to erosion unless first enclosed by sheet piling, rock rip -rap, or other protective material. The enclosure and the supportive material shall be removed when the work is completed and removal shall normally proceed from downstream in an upstream direction. The Operator shall obtain all written approvals from the Department prior to initiation of construction activities. 31. Flow diversions shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all limes that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 32. Precautions to minimize turbidity/siltation shall be taken into account during -project planning and shall be installed prior to construction. This may require that the work site be isolated and that water be diverted around the work area by means of a barrier, temporary culvert, new channel, or other means approved by the Department. Precautions may also include placement of silt fencing, straw bales, sand bags, and/or the construction of silt catchment basins, so that silt or other deleterious materials are not allowed to pass to downstream reaches. The method used to prevent siltation shall be monitored and cleaned/repaired weekly. The placement of any structure or materials in the stream for this purpose, not included in the original project description, or Department approved water pollution/water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions, 33. Silty/turbid water from dewatering or other activities shall not be discharged into the stream. Such water shall be settled, filtered, or otherwise treated prior to discharge. The Operator's ability to milli','IIZe tUrbl IIy. SII � Shc:, .: iu.. �ULjE C: O. pr, CCnStfu^.!On pia,^.C'.Gy fE ]'J�c implementation. 34. Upon Department determination that turbidity/siltation levels resulting from project related activities constitute a threat to aquatic life, activities associated with the turbiditylsiltation, shall be halted until effective Department approved control devices are installed, or abatement procedures are initiated. 35. Preparation shall be made so that runoff from steep, erodible surfaces will be diverted into stable areas with little erosion potential. Frequent water checks shall be placed on dirt roads, cat tracks, or other work trails to control erosion. 36. Water containing mud, sill, or other pollutants from equipment washing or other activities, shall not be allowed to enter a lake or flowing stream or placed in locations that may be subjected to high storm flows. 37. If an off stream siltation pond/s is/are used to control sediment, pond/s shall be constructed in a location, or shall be designed, such that potential spills into the stream/lake during periods of high water levels/flow are precluded. 38. If silt catchment basin/s is/are used, the basin/s shall be constructed across the stream immediately downstream of the project site. Catchment basins shall be constructed of materials which are free from mud and silt. Upon completion of the project, all basin materials along with the 0 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 trappe.dsediments shall be removed from. the stream.in.such a manner that -said _removal -shall not introduce sediment to the stream. 39. Silt settling basins shall be located away from the stream or lake to prevent discolored, silt bearing water from reaching the stream or lake during any flow regime. 40. Should a sill catchment basin be required, the following operational methods shall be employed: a. A silt catchment basin or basins (number and location to be determined by the Department) shall be constructed across the stream immediately below the project site. This catchment basin(s) shall be constructed of silt free gravel or other materials approved by the Department. b. Upon completion of the project and after all flowing water in the area is clear of turbidity, the gravel along with the trapped sediment shall be removed from the stream. The work area shall be secured from trespass when (as determined by the Department) fish or wildlife resources are vulnerable to damage from unsupervised public access. 41. Prior to commencing construction requiring diversion, the Operator shall submit to the Department for review and approval, the proposed water diversion plan for this project. The plan shall be consistent with the terms and conditions of this Agreement and the requirements of the U.S. Army Corps of Engineers and Regional Water Quality Control Board. Any terms and conditions in the final Agency approved water diversion, which are more restrictive than in this agreement shall be a part of this Agreement and shall be enforceable by the Department. Any changes in the original project description or Department approved water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 42. Pump intakes placed in stream/lake water shall be fitted with (1/8) inch or smaller mesh screens for January 1, through March 30, and (114) inch or small mesh screens thereafter. 43. Prior to passing water around the in -channel construction zone, the Operator shall have a certified fisheries biologist shall make visual observations to determine if there are any fish inhabiting the creek channel. If steelhead trout are observed in the in -channel construction zone, then a fish rescue shall be initiated. The fisheries biologist shall contact the Department to notify them of the need to initiate a fish rescue. Before any fish rescue activities begin, the reach would be isolated by installing nets across the flowing channel upstream of and at the downstream end of the construction zone. It is anticipated that fish would initially be captured using seines and/or tyke nets. Trapped fish would be released into a perennial portion of the creek downstream of the construction zone. The release site(s) would be approved by Department biologists and NMFS. 44. The Operator shall report all fish mortality immediately to the Department's Senior Fisheries Biologist, Mary Larson at (562) 342-7186. Additionally, all fish carcasses shall be collected and kept on ice or frozen for identification purposes by the Department. EQUIPMENT AND ACCESS: 45. Staging/storage areas for equipment and materials shall be located outside of the stream. 46. Access to the work site shall be via existing roads and access ramps. 47. No equipment maintenance shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas under any flow. 48. Vehicles shall not be driven or equipment operated in water covered portions of a stream or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be destroyed. POLLUTION AND LITTER: 49. All equipment shall be properly cleaned offsite prior to entering the stream channel. 0 Page 7 of 8 E STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 50. All sediment and associated -material re moved fromthestream-channetshall be -legally hauled and disposed of off-site. 51, Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or other petroleum products, or any other substances which could be hazardous to aquatic life, resulting from project related activities, shall be prevented from contaminating the soil and/or entering the waters of the state. These materials, placed within or where they may enter a stream/lake, by Operator or any party working under contract, or with the permission of the Operator, shall be removed immediately. 52. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings thereof, oil or petroleum products or other organic or earthen material from any construction, or associated activity of whatever nature shall be allowed to enter into or placed where it may be washed by rainfall or runoff into, waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area, No rubbish shall be deposited within 150 feet of the high water mark of any stream or lake. 53. The Operator shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the operator to ensure compliance. OTHER: 54. The Operator may request one extension of this Agreement, if the Operator requests the extension prior to the expiration of its original term. The Department shall grant the extension unless it determines that the Agreement requires modification because the measures contained in the agreement no longer protect the fish and wildlife resources that the activity may substantially adversely affect. In the event the Department makes that determination, the Department shall propose measures intended to protect those resources. If the Operator disagrees with the Department's determination that the Agreement requires modification to protect fish and wildlife resources or with the measures proposed by the Department, the disagreement shall be resolved pursuant to the procedures described in subdivision (b) of Section 1603. The Department may not extend an agreement for more than five years. The original Agreement shall remain in effect until the Department grants the extension request, or new measures are imposed to protect fish and wildlife resources by agreement or through the arbitration process, however, the original Agreement may not remain in effect for more than one year after its expiration date. If the Operator fails to submit a request to extend an agreement prior to its expiration, the Operator shall submit a new notification before commencing or continuing the activity covered by the Agreement. Any activities conducted under an expired agreement constitute a violation of Fish and Game Code Section 1600 et seq. The extension request and fees shall be submitted to the Department's Region 5 Office Streambed Team at 4949 Viewridge Avenue, San Ciego, California 92123. If the Operator fails to recuest the extension prior to the agreement's termination then the Operator shall submit a new notification with fees and required information to the Department. Any activities conducted under an expired agreement is a violation of Fish and Game Code Section 1600 et seq. 55 The Operator shall provide a copy of this Agreement to all contractors, subcontractors, and the Operator's project supervisors. Copies of the Agreement shall be readily available at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency upon demand. 56. The Department reserves the right to enter the project site at any time to ensure compliance with terms/conditions of this Agreement. 57. All provisions of this Agreement remain in force throughout the term of the Agreement. Any provisions of the Agreement may be amended or the Agreement may be terminated at any time provided such amendment and/or termination is agreed to in writing by both parties. Mutually approved amendments become part of the original Agreement and are subject to all previously negotiated provisions. 0 0 Page 8 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 —58. If -the Operatoror anyof- the'individuals mentioned above violate anyof-the teffris or conditions of this agreement, all work shall terminate immediately and shall not proceed until the Department has taken all of its legal actions. 59. The Operator shall notify the Department, in writing, at least five (5) days prior to Initiation of construction (project) activities and at least five (5) days prior to completion of construction (project) activities. Notification shall be sent to the Department at 4949 Viewridge Avenue, San Diego, California 92123, Alin' Donna Cobb, ES. SAA#1600-2004-0060-R5. 60. It is understood the Department has entered into this Streambed Alteration Agreement for purposes of establishing protective features for fish and wildlife. The decision to proceed with the project is the sole responsibility of the Operator, and is not required by this agreement. It is further agreed all liability and/or incurred cost related to or arising out of the Operator's project and the fish and wildlife protective conditions of this agreement. remain the sole responsibility of the Operator. The Operator agrees to hold harmless the State of California and the Department of Fish and Game against any related claim made by any party or parties for personal injury or any other damages. 61. The Department reserves the right to suspend or cancel this Agreement for other reasons, including but not limited to the following a. The Department determines that the information provided by the Operator in support of the Notification/Agreement is incomplete or inaccurate; b. The Department obtains new information that was not known to it in preparing the terms and conditions of the Agreement; C. The project or project activities as described in the Notification/Agreement have changed; d. The conditions affecting fish and wildlife resources change or the Department determines that project activities will result in a substantial adverse effect on the environment. 62. Before any suspension or cancellation of the Agreement, the Department will notify the Operator in writing of the circumstances which the Department believes warrant suspension or cancellation. The Operator will have seven (7) working days from the date of receipt of this notification to respond in writing to the circumstances described in the Department's notification. During the seven (7) day response period, the Operator shall immediately cease any project activities which the Department specified in its notification. The Operator shall not continue the specified activities until that time when the Department notifies the Operator in writing that adequate methods and/or measures have been identified and agreed upon to mitigate or eliminate the significant adverse effect. CONCURRENCE (Operator's name) (signalure) (date) ype or print name an�/d title)n Prepared by Donna t Cobb, Environmental Scientist CALIFORNIA DEPT. OF FISH AND GAME -, y, az Fsignature da`ee) C.F. RAYSBROOK Regional Manager 0 0 Ntr, Chuck 6to=meier, P.B. Southern California Regional Rail Authority 275 Nest kiospft itLane, Suite 30D 5anBernardino, L)alifomia 92408. Subject: Streambed.AlteratiouAgreement.No.,125.2004-006.0— Southern, Ca'lifon»a Regional Rail Authority Project Aihendmeut No. i Bear N&. StmTensmeier: The California Department of Fish and Game (Department) bqs reviewed the tequest+sobinittei7 by >4js, Lindsay MessEtt of C(ismber Group Inc., dated March 3, 2005, to amend Streainbed.Aiteration Agreement Notification No, R3-2004-0060, The Agreement allows for rite Southern CalbmiaRegipnal hail Authority Project to impact Agvyo Trabuco Cieek, tributary! to San Juan Creek in Orange County, Pursuant to Fish and Game Code Section 1600 et seq. this letter, when countersigned, amends our agreement as follows:. Amend construction termination date (to read): + December 31, 2006. EXHIBIT "D" 2 C Amend Condition 4 (to read) + TheOporatoi.sdallnot:impsictmare'than. 0.517 acre: of stream cbaftwLpfwVch approximately 0.003 acre are permanent impacts, and apprm mately 9,5,14 am are temporary impaots. This increased temporary impact urea of 0.48;0=19. . includes atotal 0£0,27 acre ofsonthem willow scrub. vegetation as.6hpwn on Trabuco +Craek.Bridge Temporaryiriipact Area map dated February4 2005. Amend Agreement by adding Condition Sa (to read): The Operator shell mitigate 0.483 acre of permanent and ternporaty.impacts to streamand riparian.babitats.. Southern willow scrub (0.27 acres) shallIe mitigated. it a.compegsation to impact ratio of 3:1 and the remainder of the impaats (0,273. t>ciesj shall ba rri'Mpated at a eompensation to impactralTo t i a:x. 2yltigation may include aonWImthtg to a giant reed (4rundel domes) removal program appnoveii by the Department. The dperator shall prou+de a mitigation reporting pian to the Deparmtertrwltltin 30 -lays of sigaiug :(his umeriilment Amend Condition J5(to read): • 7hte to tTte'presence of native riparian vegetation, all vegetation clearing shal(,be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shall be adegoately flagged to prevent damage to adjaront riparian habitat; and to ensure that direct and indireel irnp" to fish or wildlife, inpatlrcularb[r8S and pond turtles, are avoided. Flagging shall bekept in place during eonskKgctiott and my flagging material that enters the stream Va be t+emoved as soon as possible. The Dperatpr vA[ *6vide the Department photo documentation of the, flagged perimeter priorto conunenceinent of work - Amend orkAmend' Condition 55 (to read): • The Operator shall provide a copy of this Agreeme it anti all ameadnwwts and. extensions Yo all Coatractprs, subcontractots, atul the t3peratp�s project ' supervisors, Copies ofthe Agreement, amendments and extensions shall be. readily SNaihtbleat Work Sites at all times during periods of active work and must -be presented to any Department personnel, or personnel from another ageney:upon demand: Bo advised that all conditions of the onlinal Agreement Nd, i25�2002-13060 Towait s in effedt throughout the term ofthe agreement: A copy of said agreement AND , THIS AMENDMENT LETTEk must be kept on site and be sbown upon request to E 0 Cl • STATE OF CALIFORNIA -THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER Governor DEPARTMENT OF FISH AND GAME South Coast Region 4949 Viewridge Avenue Diego. California 92123 m ._.6)467-4201 ... ._. ._. ... ... _.. ... .__... FAX (658) 467-4235 .... __. _ _. .. .. .._._....... __ .. .. .... April 16, 2004 Mr. Chuck Steffensmeier, P.E. Southern California Regional Rail Authority 275 West Hospitality Lane, Suite 300 San Bernardino, California 92408 Dear Mr. Steffensmeier: Enclosed is Streambcd Alteration Agreement No. 1600-2004-0060-R5 that authorizes work on the Southern California Regional Rail Bridge Project, impacting Arroyo Trabuco Creek in Orange County. This action is authorized under Section 1600 of the Fish and Game Code and has been approved by the California Department of Fish and Game. Pursuant to the requirements of the California EnvironmentaJ Quality Act (CEQA), the Department filedaNotice ol'Exemption(NOE) on the project on__orf �pi__ Under CEQA regulations, the project has a 35 -day statute of limitations of court c allch nges of the Department's approval under CEQA. The Department believes that the project billy meets the requirements of the Fish and Game Codc and CEQA. However, if court challenges on the NOE are received during the 35 -day period, then an additional review or even modification of the project may be required. If no comments are received during the 35 -day period, then any subsequent comments need not he responded to. This information is provided to you so that if you choose to undertake the project prior to the close of the 35 -day period, you do so with the knowledge that additional actions may he required based on the results of any court challenges that are filed during that period. Please contact Donna Cobb at (858) 637-5510 if' you have any questions regarding the Strcambed Alteration Agreement. Sincerely, C.T. RXYSBROOK Regional Manager Enclosure cc: Donna Cobb 0 0 CALIFORNIA DEPARTMENT OF FISH AND GAME 4949 Viewridge Avenue San Diego, California 92123 Notification No. 1600-2004-0060-R5 -Page-T-.�.B AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION THIS AGREEMENT, entered into between the State of California, Department of Fish and Game, hereinafter called the Department, and Southern California Regional Rail Authority (P.O.C. Mr. Chuck Steffensmeier), 275 West Hospitality Lane, Suite 300, San Bernardino, California 92408; Phone (909) 806-8006, Fax (909) 806-8099, hereinafter called the Operator, is as follows: WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator, on the 5" day of February, 2004, notified the Department that they intend to divert or obstruct the natural flow of, or change the bed, channel, or bank of, or use material from the streambed(s) of, the following water(s): Arroyo Trabuco Creektributary to San Juan Creek, Orange County, California, Section 36, 1 ownship 7S, Range BW; USGS Map San Juan Capistrano 77.5; and WHEREAS, the Department has determined that such operations may substantially adversely affect those existing fish and wildlife resources within Arroyo Trabuco Creek. tributary to San Juan Creek, specifically identified as follows Amphibians: Pacific slender salamander, western toad, and Pacific treefrog; Reptiles: southwestern pond turtle, western fence lizard, side -blotched lizard, coastal whiptail, California kingsnake, and gopher snake; Fishes: southern steelhead trout, and various other local fish; Birds: least Bell's vireo, southwestern willow flycatcher, yellow -breasted chat, white-tailed kite, red-tailed hawk, red -shouldered hawk, Cooper's hawk, American kestrel, mourning dove, wrens, California towhee, California quail, wrentit, trukey vulture, swallows, common raven, northern mockingbird, owls, killdeer, Anna's hummingbird, great blue heron, great egret, snowy egret, woodpeckers, swifts, swallows, western kingbird, wrens, vireos, grosbeaks, orioles, waxbills, California horned lark, finches, black phoebe, warblers, sparrows, numerous other songbirds and shorebirds; Mammals: longtail weasel, coyote, raccoon, California ground squirrel, Virginia opossum, brush rabbit, Audubon cottontail, Botta's pocket gopher, striped skunk, mice, and bats; Riparian vegetation which provides habitat for those species: willow, mulefat, cattails; and all other aquatic and wildlife resources, in the area. THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources during the Operator's work. The Operator hereby agrees to accept the following r:easures/conditions as part of the proposed work. If the Operator's work changes from that stated in the notification specified above, this Agreement is no longer valid and a new notification shall be submitted to the Department of Fish and Game. Failure to comply with the provisions of this Agreement and with other pertinent code sections, including but not limited to Fish and Game Code Sections 5650, 5652, 5937, and 5948, may result in prosecution. Nothing in this Agreement authorizes the Operator to trespass on any fand or property, nor does it relieve the Operator of responsibility for compliance with applicable federal, state, or local laws or ordinances. A consummated Agreement does not constitute Department of Fish and Game endorsement of the proposed operation, or assure the Department's concurrence with permits required from other agencies. 0 0 Page 2 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 ?_-. The. foilowing-prouisions-constitute the lmit-ofasUuities-agreedto- and {esolued-by-this Agreement- ----------_ The signing of this Agreement does not imply that the Operator is precluded from doing other activities at the site, However, activities not specifically agreed to and resolved by this Agreement shall be subject to separate notification pursuant to Fish and Game Code Sections 1600 of seq. PROJECT DESCRIPTION: 2. The Operator proposes to alter the streambed and banks through the proposed rehabilitation of the Trabuco Creek Railroad Bridge located in the City of San Juan Capistrano. The major components of this rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of B -inch thick reinforced concrete encasement. The existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will be required within the streambed during construction of the 8 -inch encasement. Lifting equipment will be required within the streambed during placement of the bridge superstructure. 3. The agreed work includes activities associated with No. 2 above. The project area is located in the Arroyo Trabuco Creek, tributary to San Juan Creek, in Orange County. Specific work areas and mitigation measures are described on/in the plans and documents (Notification of Lake or Streambed Alteration, Metrolink Commuter Rail System: Hydraulic Analysis for Aliso Creek and Trabuco Creek, dated January 26, 2004, and Notice of Exemption, adopted September 13, 1991) submitted by the Operator, and shall be implemented as proposed unless directed differently by this agreement. IMPACTS: 4. The Operator shall not impact more than 0.037 acre of stream channel. Approximately 0.003 acre are permanent impacts, and approximately 0.034 acre are temporary impacts. MITIGATION: 5. The Operator shall mitigate 0.0112 acre of impacts to riparian habitat as outlined in the Proposed Mitigation Plan for the Trabuco Creek Fish Access Project, submitted by the Southern California Regional Rail Authority, dated August 5, 2003; and any subsequent revisions approved in writing by the Department. BIOLOGICAL SURVEYS AND TIME RESTRICTIONS: 6. The Operator shall not remove vegetation within the stream from March 15" to July 31" to avoid impacts to nesting birds. However, work may occur during this time if a qualified biologist conducts a minimum of three days of surveys for nesting birds within seven days prior to the vegetation removal, and at least one survey must be within three days prior to the vegetation removal, to ensure no nesting birds shall be impacted by the project. These surveys shall include the areas within 200 feet of the edge of the proposed impact areas. Documentation of findings, including a negative finding must be submitted to the Department for review and concurrence. If no breeding/nesting birds are observed and concurrence has been received from the Department, site preparation and construction activities may begin. If breeding activities and/or an active bird nest is located and concurrence has been received from the Department, the breeding habitat/nest site shall be fenced a minimum of 100 feet (200 feet for raptors) in all directions, and this area shall not be disturbed until the nest becomes inactive, the young have fledged, the young are no longer being fed by the parents, the young have left the area, and the young will no longer be impacted by the project. 7. Prior to construction activities, the area shall be surveyed for southwestern pond turtle by a qualified on-site biologist to ensure that no direct or indirect impacts shall occur to southwestern pond turtle as a result of the proposed project. If turtles are present, the specialist shall submit a Pond 9 0 Page 3 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 Turtle Mttfgation Plan to the Department and it-shafHnelude complete -avoidance -measures -for Department review and approval, prior to project initiation, 8. Prior to work commencing at the bridge site, the Operator shall have a biologist survey the bridge structure for bats a minimum of 3 times, seven -days apart; unless a positive presence is determined then surveys can be ended. 9. If bats are believed to occupy a structure, a qualified bat biologist shall be consulted to determine the species and to develop measures to protect the bats to supplement the conditions contained in this agreement. If loss of significant bat roosting habitat occurs due to the implementation of the project, protection measures will include the installation of roosting structures below the deck, at Department approved locations. The Department shall be provided all supplemental protection measures for its review and written approval. 10. The Operator shall avoid work March 15'" through September 1" on bridges when it would disturb nesting swallows. If such a condition cannot be met, then prior to March 1"of each year, the Operator shall remove all existing nests which would be destroyed by the project. The Operator shall continue to discourage new nest building in places where they would be disturbed using methods approved by Caltrans and the Department. Nest removal and hazing must be repeated at least weekly until construction begins or until a swallow exclusion device is installed. The exclusion device must provide a space of four to six inches for the passage of snakes at the bottom edge. Nests must be discouraged throughout the term of the project. At no time shall occupied nests be destroyed as a result of project construction. 11. The Operator shall avoid work within the stream from October 15'" to June 15" to avoid impacts to fish migration and smolt movement. 12. If work is performed within the stream channel during the winter storm period the Operator shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work activities shall involve the securing of the site, so as no materials may enter or be washed into the stream. The site shall be completely secured one (1) day prior to precipitation, unless prior written approval has been provided by the Department. During period of precipitation, no construction activities may occur; activities involving the preventing of materials from entering the stream or being washed downstream may be conducted. IS. In ine event inat one ( i) inch of precipitation is accumulatao within the watershed, no activities shall occur on site for two weeks, or until the flows have receded and the moisture content of the soils has stabilized. VEGETATION REMOVAL AND HABITAT PROTECTION: 14. Disturbance, removal or trimming of vegetation for equipment access shall not exceed the limits approved by the Department. 15. Due to the presence of native riparian vegetation, all vegetation clearing shall be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shall be adequately flagged to prevent damage to adjacent riparian habitat, and to ensure that direct and indirect impacts to fish or wildlife, in particular birds and pond turtles, are avoided. 16. The work area shall be identified to all workers, as represented in plans. Native vegetation shall not be removed or intentionally damaged or beyond the designated work area. 17. Except where provided for within this agreement, the removal of soil and native vegetation from the streambed or streambanks is prohibited without prior written approval from the Department. 18. No direct or indirect impacts shall occur to any threatened or endangered species as a result of implementing the project or the project's mitigation activities. If any threatened or endangered species could be impacted by the work proposed, U.S. Fish and Wildlife Service 0 0 Page 4 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 (I W&) ef-theprejeet4s 1.. mitigation activities. If necessary, the Operator shall obtain the required state and federal threatened and endangered species permits. If there is no USFW S survey protocol for a particular listed species, the Department shall be consulted to determine appropriate survey procedures. The Department shall be provided copies of survey reports prior to project implementation, and prior to the implementation of mitigation activities. This agreement does not authorize the take of any federal or stale threatened or endangered species. 19. If any sensitive species are observed in project surveys, the Operator shall cause a California Native Species Field Survey Form and survey map to be submitted to the Natural Diversity Database (NDDB) within five working days of the sightings, and prior to commencement of work. The form is available on-line at http://www.dfg.ca.gov/whdab/natspec.pdf, and instructions for completing the form are available at http://www.dfq.ca.gov/whdab/fsfinst.r)df, The form and survey map shall be sent to the Department of Fish and Game, California Natural Diversity Database, 1807 13th Street, Suite 202, Sacramento, CA 95814, with copies sent to the Department at 4949 Viewridge Avenue, San Diego, CA 9212.3, Attn: Streambed Alteration Program - SAA #1600-2004-0060-R5. 20. Ail vegetation shall be removed by hand or by hand -operated tools. 21. A qualified biological monitor shall be present and/or shall examine the site and mark native vegetation that is to be trimmed with flagging to ensure impacts are within the conditions of this Agreement. 22. No alteration of the slreambed, bank or channel shall occur, except as otherwise permitted in this Agreement. The removal of soil, native vegetation and vegetative debris from the streambed or stream banks is prohibited, except as otherwise specified within this Agreement; however, the Operator may remove all human generated debris, garbage and trash. I_NSTREAM STRUCTURES AND FLOW DIVERSIONS: 23. Installation of bridges, culverts, or other structures shall be such that water flow is not impaired. Bottoms of temporary culverts shall be placed at stream channel grade and bottoms of permanent culverts shall be placed at or below stream channel grade. ? 1 " tsmporary ^ verts sha . i- r me : n prier to the winter storm period (first winter rain). 25. Any temporary dam or other artificial obstruction constructed shall only be built from materials such as clean gravel which will cause little or no siltation, and shall be approved by the Department prior to construction. 26. When any dam or other artificial obstruction is being constructed, maintained, or placed in operation, sufficient water shall at all times be allowed to pass downstream to maintain aquatic life below the dam pursuant to Fish and Game Code section 5937, 27. An adequate fish/aquatic passage facility shall be incorporated into any barrier that obstructs fish/aquatic passage, 28. Plans for design of concrete sills and other features that could potentially impede fish/aquatic migrations shall be approved by the Department. 29. Permanent structures shall be designed, constructed and maintained such that they do not constitute a barrier to upstream or downstream movement of aquatic life, or cause an avoidance reaction by fish that impedes their upstream or downstream movement. This includes but is not limited to the supply of water at an appropriate depth, temperature, and velocity to facilitate upstream and downstream fish migration. If any aspect of the proposed project results in a long term reduction In fish movement, the Operator shall be responsible for all future activities and expenditures necessary (as determined by the Department) to secure passage of fish across the structure. 0 0 Page 5 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 30. No equipment shall be operated in ponded or flowing areas. When work in a flowing stream is unavoidable, the entire stream flow shall be diverted around the work area by a barrier, temporary culvert, new channel, or other means approved by the Department, Location of the upstream and downstream diversion points shall be approved by the Department. Construction of the barrier and/or the new channel shall normally begin in the downstream area and continue in an upstream direction, and the flow shall be diverted only when construction of the diversion is completed. Channel bank or barrier construction shall be adequate to prevent seepage into or from the work area. Diversion berms shall be constructed of onsite alluvium of low silt content, inflatable dams, sand bags, or other approved materials. Channel banks or barriers shall not be made of earth or other substances subject to erosion unless first enclosed by sheet piling, rock rip -rap, or other protective material. The enclosure and the supportive material shall be removed when the work is completed and removal shall normally proceed from downstream in an upstream direction. The Operator shall obtain all written approvals from the Department prior to initiation of construction activities. 31. Flow diversions shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all times that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 32. Precautions to minimize turbidity/siltation shall be taken into account during -project planning and shall be installed prior to construction. This may require that the work site be isolated and that water be diverted around the work area by means of a barrier, temporary culvert, new channel, or other means approved by the Department. Precautions may also include placement of silt fencing, straw bales, sand bags, and/or the construction of silt catchment basins, so that silt or other deleterious materials are not allowed to pass to downstream reaches. The method used to prevent siltation shall be monitored and cleaned/repaired weekly. The placement of any structure or materials in the stream for this purpose, not included in the original project description, or Department approved water pollution/water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 33. Silty/turbid water from dewatering or other activities shall not be discharged into the stream, Such water shall be settled, filtered, or otherwise treated prior to discharge. The Operator's ability to mL•,,imize hirbidity!siltatic . shL�!I b-� tl,e subjec' of pr- constru:'.ion planring fc a'Jre implementation. 34. Upon Department determination that turbidity/siltation levels resulting from project related activities constitute a threat to aquatic life, activities associated with the turbidity/siltation, shall be halted until effective Department approved control devices are installed, or abatement procedures are initiated. 35. Preparation shall be made so that runoff from steep, erodible surfaces will be diverted into stable areas with little erosion potential. Frequent water checks shall be placed on dirt roads, cat tracks, or other work trails to control erosion. 36. Water containing mud, silt, or other pollutants from equipment washing or other activities, shall not be allowed to enter a lake or flowing stream or placed in locations that may be subjected to high storm flows. 37. If an off stream siltation pond/s is/are used to control sediment, pond/s shall be constructed in a location, or shall be designed, such that potential spills into the stream/lake during periods of high water levels/flow are precluded. 38. If silt catchment basin/s is/are used, the basin/s shall be constructed across the stream immediately downstream of the project site. Catchment basins shall be constructed of materials which are free from mud and silt. Upon completion of the project, all basin materials along with the 0 0 Page 6 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 trapped sedimen1sshatl be.removed_from the steam .in- such a.mannetihat sa d-remava! siaalt fiof - ---- ----- introduce sediment to the stream. 39. Silt settling basins shall be located away from the stream or lake to prevent discolored, silt bearing water from reaching the stream or lake during any flow regime. 40. Should a silt catchment basin be required, the following operational methods shall be employed: a. A silt catchment basin or basins (number and location to be determined by the Department) shall be constructed across the stream immediately below the project site. This catchment basin(s) shall be constructed of silt free gravel or other materials approved by the Department. b. Upon completion of the project and after all flowing water in the area is clear of turbidity, the gravel along with the trapped sediment shall be removed from the stream. The work area shall be secured from trespass when (as determined by the Department) fish or wildlife resources are vulnerable to damage from unsupervised public access. 41. Prior to commencing construction requiring diversion, the Operator shall submit to the Department for review and approval, the proposed water diversion plan for this project. The plan shall be consistent with the terms and conditions of this Agreement and the requirements of the U.S. Army Corps of Engineers and Regional Water Quality Control Board. Any terms and conditions in the final Agency approved water diversion, which are more restrictive than in this agreement shall be a part of this Agreement and shall be enforceable by the Department. Any changes in the original project description or Department approved water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 42. Pump Intakes placed in stream/lake water shall be fitted with (1/8) inch or smaller mesh screens for January 1, through March 30, and (1/4) inch or small mesh screens thereafter. 43. Prior to passing water around the in -channel construction zone, the Operator shall have a certified fisheries biologist shall make visual observations to determine If there are any fish inhabiting the creek channel. If steelhead trout are observed in the in -channel construction zone, then a fish rescue shall be initiated. The fisheries biologist shall contact the Department to notify them of the need to initiate a fish rescue. Before any fish rescue activities begin, the reach would be isolated by installing nets across the flowing channel upstream of and at the downstream end of the construction zone. It is anticipated that fish would initially be captured using seines and/or fyke nets. Trapped fish would be released into a perennial portion of the creek downstream of the construction zone. The release site(s) would be approved by Department biologists and NMFS. 44. The Operator shall report all fish mortality immediately to the Department's Senior Fisheries Biologist, Mary Larson at (562) 342-7186. Additionally, all fish carcasses sha!I be collected and kept on ice or frozen for identification purposes by the Department. EQUIPMENT AND ACCESS: 45, Staging/storage areas for equipment and materials shall be located outside of the stream. 46. Access to the work site shall be via existing roads and access ramps. 47. No equipment maintenance shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas under any flow. 48. Vehicles shall not be driven or equipment operated in water covered portions of a stream or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be destroyed. POLLUTION AND LITTER: 49. All equipment shall be properly cleaned offsite prior to entering the stream channel. 0 0 Page 7 of 8 STRFAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 50: -AI{ -sediment -and associated material removed from the stream channel shall be -legally hauled and disposed of off-site. 51. Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or other petroleum products, or any other substances which could be hazardous to aquatic life, resulting from project related activities, shall be prevented from contaminating the soil and/or entering the waters of the state. These materials, placed within or where they may enter a stream/take, by Operator or any party working under contract, or with the permission of the Operator, shall be removed immediately. 52. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings thereof, oil or petroleum products or other organic or earthen material from any construction, or associated activity of whatever nature shall be allowed to enter into or placed where it may be washed by rainfall or runoff into, waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any stream or lake. 53. The Operator shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the operator to ensure compliance. OTHER: 54. The Operator may request one extension of this Agreement, if the Operator requests the extension prior to the expiration of its original term. The Department shall grant the extension unless it determines that the Agreement requires modification because the measures contained in the agreement no longer protect the fish and wildlife resources that the activity may substantially adversely affect. In the event the Department makes that determination, the Department shall propose measures intended to protect those resources. If the Operator disagrees with the Department's determination that the Agreement requires modification to protect fish and wildlife resources or with the measures proposed by the Department, the disagreement shall be resolved pursuant to the procedures described in subdivision (b) of Section 1603, The Department may not extend an agreement for more than five years. The original Agreement shall remain in effect until the Department grants the extension request, or new measures are imposed to protect fish and wildlife resources by agreement or through the arbitration process, however, the original Agreement may not remain in effect for more than one year after its expiration date. If the Operator fails to submit a request to extend an agreement prior to its expiration, the Operator shall submit a new notification before commencing or continuing the activity covered by the Agreement. Any activities conducted under an expired agreement constitute a violation of Fish and Game Code Section 1600 at seq. The extension request and fees shall be submitted to the Department's Region 5 Office Streambed Team at 4849 Viewridge Avenue, San Diego, California 92123. If the Operator fails to request the extension prior to the agreement's termination then the Operator shall submit a new notification with fees and required information to the Department. Any activities conducted under an expired agreement is a violation of Fish and Game Code Section 1600 of seq. 55. The Operator shall provide a copy of this Agreement to all contractors, subcontractors, and the Operator's project supervisors. Copies of the Agreement shall be readily available at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency upon demand. 56. The Department reserves the right to enter the project site at any time to ensure compliance with terms/conditions of this Agreement. 57. All provisions of this Agreement remain in force throughout the term of the Agreement. Any provisions of the Agreement may be amended or the Agreement may be terminated at any time provided such amendment and/or termination is agreed to in writing by both parties. Mutually approved amendments become part of the original Agreement and are subject to all previously negotiated provisions, 0 0 Page 8 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 �6: If tire Operator vr-anq-o¢the rrrdiaidvafs merriioned above; viela}e any-efihe farms or-eortditions of this agreement, all work shall terminate immediately and shall not proceed until the Department has taken all of its legal actions. 59, The Operator shall notify the Department, in writing, at least five (5) days prior to Initiation of construction (project) activities and at least five (5) days prior to completion of construction (project) activities. Notification shall be sent to the Department at 4949 Viewridge Avenue, San Diego, California 92123, Attm Donna Cobb, ES, SAA#1600.2004-0060-R5. 60. It is understood the Department has entered into this Streambed Alteration Agreement for purposes of establishing protective features for fish and wildlife. The decision to proceed with the project is the sole responsibility of the Operator, and is not required by this agreement. It is further agreed all liability and/or incurred cost related to or arising out of the Operator's project and the fish and wildlife protective conditions of this agreement. remain the sole responsibility of the Operator. The Operator agrees to hold harmless the State of California and the Department of Fish and Game against any related claim made by any party or parties for personal injury or any other damages. 61. The Department reserves the right to suspend or cancel this Agreement for other reasons, including but not limited to the following a. The Department determines that the information provided by the Operator in support of the Notification/Agreement is incomplete or inaccurate; b. The Department obtains new information that was not known to it in preparing the terms and conditions of the Agreement; c. The project or project activities as described in the Notification/Agreement have changed; d. The conditions affecting fish and wildlife resources change or the Department determines that project activities will result in a substantial adverse effect on the environment. 62. Before any suspension or cancellation of the Agreement, the Department will notify the Operator in writing of the circumstances which the Department believes warrant suspension or cancellation. The Operator will have seven (7) working days from the date of receipt of this notification to respond in writing to the circumstances described in the Department's notification. During the seven (7) day response period, the Operator shall immediately cease any project activities which the Department specified in its notification. The Operator shall not continue the specified activities until that time when the Department notifies the Operator in writing that adequate methods and/or measures have been identified and agreed upon to mitigate or eliminate the significant adverse effect. CONCURRENCE (Operator's name) (signature) % (date) ype or print name and title) Prepared by: Donna L. Cobb, Environmental Scientist CALIFORNIA DEPT. OF FISH AND GAME (signature)c) (date C.F.RAYSBROOK Regional Manager REPLY TO ATTENT ION OF Office of the Chief Regulatory Branch 0 0 DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, CORPS OF ENGINEERS P.O BOX 532711 is LOS ANGELES, CALIFORNIA 9DO53-2325 v May 11, 2004 DEPARTMENT OF THE ARMY NATIONWIDE PERMIT AUTHORIZATION Orange County Tramsportation Authority Attention: Min Saysay 550 South Main street, 14184 Orange, CA 92683-1584 Dear Mr. Saysay! This is in reply to your letter (No. 200400653 -DPS) dated January 28, 2004, for Department of the Army authorization to permanently discharge up to 0.0048 acre of fill (as well as 0.0064 acre of temporary fill), associated with construction of the Aliso Creek Bridge, and up to 0.0028 acre of fill (as well as 0.0335 acre of temporary fill), associated with construction of the Trabuco Creek Bridge, within the cities of Lake Forest and San Juan Capistrano, respectively, in Orange County, California. Both bridge projects are part of the Santa Ana 2nd Main Track project. T7Te Corps of Engineers has determined that your proposed activity complies with the terms and conditions of nationwide permit NW14 and NW33 as described in enclosure 1. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissued, revoked, or expires before that time. Presently, all nationwide permits ore scheduled to expire on March 18, 2007. It is incumbent upon you to remain informed of changes to the nationwide permits. We will issue a public notice announcing the changes when they occur. Furthermore, if you commence or are tinder contract to commence this activity before the date the nationwide permit is modified or revoked, you will have twelve months from the dale of the modification or revocation to complete the activity under the present terms and conditions of the nationwide permit. A nationwide permit does not grant any property rights or exclusive privileges. Also, it does not authorize any injury to the property or rights of others or authorize interference with any existing or proposed Federal project. Furthermore, it does not obviate the need to obtain other Federal, state, or local authorizations required by law. EXHIBIT "D" 3 0 0 -2- Thank you for participating in our regulatory program. If you have any questions, please contact Daniel P. Swenson of my staff at (213) 452-3414. I am forwarding a copy of this letter to: Commuter Rail Engineering Team, Attention: Mr. Chris Coffman, 515 S. Flower Street, 9" floor, Los Angeles, California 90071, Sincerely, Mark Durham Chief, South Coast Section Regulatory Branch Enclosure 0 -3 - LOS ANGELES DISTRICT U.S. ARMY CORPS OF ENGINEERS CERTIFICATION OF COMPLIANCE WITH DEPARTMENT OF THE ARMY NATIONWIDE PERMIT Permit Number: 200400653 -DPS Name of Permittee: Orange County Transporla I ion Authority, Min Saysay Date of Issuance: April 28, 2004 Upon completion of the activity authorized by this permit and any mitigation required by the permit, sign this certification and return it to the following address: U.S Army Corps of Engineers Regulatory Branch ATTN: CESPL-CO-R-200400653-DPS P.O. Box 532711 Los Angeles, California 90053-2325 Please note that your permitted activity is subject to a compliance inspection by an Army Corps of Engineers representative. If you fail to comply with this nationwide permit you may be subject to permit suspension, modification, or revocation procedures as contained in 33 CFR 330.5 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of the said permit, and required mitigation was completed in accordance with the permit conciition(s). Signature of Permittee Da to 0 0 TIONWiDE PERMIT NUMBER NW14, NW33, NW14 and NW33 TERMS AND CONDITIONS 1. Nationwide Permit NW 14 and NW33 Terms: Yout activity is authorized under NW14 and NW33 subject to the following terms: 14. Linear Transportation Crossings. Activities required for the construction, expansion, modification, or improvement of linear transportation crossings (e.g., highways, railways, trails, and airport runways and taxiways) in waters of the United States, including wetlands, provided the activity meets the following criteria: a. This NWP is subject to the following acreage and linear limits: (1) For lineartrantprutation project in tion -tidal waters, excluding non -tidal wetlands adjacent to tidal waters, provided the discharge does not cause the loss of greater than 1/2 acre of waters of the United States; (2) For linear trap-sportation.p ejects in tidal waters or non -tidal wetlands adjacent to tidal waters, provided the discharge dues not cause the loss of greater than 1/3 acre of waters of the United States and the length of fill for the crossing in waters of the United States does not exceed 200 linear feet, or; b. The permittee must notify the District Engineer in accordance with General Condition 13 if any of the following criteria are met. (1) The discharge causes the loss of greater than 1 /10 acre of waters of the United States; or (2) There is a discharge in a special aquatic site, including wetlands; c. The notification most include a compensatory mitigation proposal to offset permanent losses of waters of the United States to ensure that those losses result only in minimal adverse effects to the aquatic environment and a statement describing how temporary losses of waters of the United States will be. minimized to the maximum extent practicable; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of the affected special aquatic sites; e. The width of the fill is limited to the minimum necessary for the crossing; f. This permit does not authorize stream channelizatiun, and the authorized activities must not cause more than minimal changes to the hydraulic flow characteristics of the stream, increase flooding, or cause more than minimal degradation of water quality of any stream (see General Conditions 9 and 21); g. This permit cannot be used to authorize non-linear features commonly assocmtcd with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars; and h. The crossing is a single and complete project for crossing a water of the United States. Where a road segment (i.e., the shortest segment of a road with independent utility that is part of a larger project) has multiple crossings of streams (several single and complete projects) the Corps will consider whether it should use its discretionary authority to require an individual permit (Sections 10 and 404) Nor,, Some discharges for the construction of (arm roads, forest roads, or temporary roads for moving mining equipment May be eligible for an exemption from the need for a Section 404 permit (see 33 CFR 323.4). Nationwide Number 33: Temporary Construction, Access and Deeualering. Temporary structures, work and discharges, including cofferdams, necessary for construction activities or access fills or dewatering of construction sites; provided that the associated primary activity is authorized by the Corps of Engineers or the U.S. Coast Guard, or for other construction activities not subject to the Corps or U.S. Coast Guard regulations. Appropriate measures must be taken to maintain near normal downstream flows and to minimize flooding. Fill musk be of materials, and placed in a manner, that will not be eroded by expected high flows. The use of dredged material may be allowed if it is determined by the District Engineer that it will not cause more than minimal adverse effects on aquatic resources. Temporary fill must be entirely removed to upland areas, or dredged material returned to its original location, following completion of the construction activity, and the affected amps must be restored to the pre project conditions. Cofferdams cannot be used to dewaler wetlands or other aquatic areas so as to change their use. Structures left in place after cofferdams are removed require a ScYnun 10 permit if located in navigahle waters of the United States. (Suv? 33 CFR Part 322). The permittee must notify the District Engineer in accordance with the "Nidi ficabun" general condition. The notification must also include a restoration plan of reasonable measures to avoid and minimize adverse efforts to aquatic resources. The Distnct Fngmeer will add special conditions, where oeces'.sary, to ensure that adverse environmental effects are minimal. Such conditions may include: limiting the temporary work to the •mimum necessary; requiring seasonal restrictions; modifying the restoration plan; and requiring alternative construction methods .g., construction mats in wetlands where practicable.). (Sections 10 and 404) 0 0 2. Nationwide Permit General Conditions: The following general conditions must be followed in urder for any authorization by an NWP to be valid: 1. Navigation. No activity may cause more than a minimal adverse effect on navigation. 2. Proper Maintenance. Any structure or fill authorized shall be properly maintained, including maintenance measure public safety. 3. Soil Frosimi and.eedimrof Cmurols. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed sod and other fills, as well as any work below, the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are enrouragcd to perform work within waters of the United States during periods of low -flow or no -flow. 4. Aquatic Life Movernents. No activity may substantially disrupt the necessary life -cycle movements of those species of aquatic life indigenous to the waterbody, including those .species that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions. 5. Equipmrnl. I leavy equipment working in wetlands must be placed on mats, or other measures must he taken to minimize soil disturbance. 6. Regional and Case Ry -Cam Conditions. 'Ihe activity must comply with any regional conditions that may have been added by the Division Engineer (see 33 CFR 330 A(e)). Additionally, any case specific conditions added by the Corps or by the stale or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination, 7. Wild and Scerne Rivers. No activity may occur in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river" for possible inclusion in the system, while the river is in an official study status; unless the appropriate Federal agency, with direct management responsibility for such river, has determined in writing that the propdsed activity will not adversely affect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Riven may be obtained from the appropriate Federal land management agency in the area (e g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). B. Tribal Rights. No activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights, 9. Water Quality. (d) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4(c)). (b) For N W Ps 12, 14, 17, IA, 32, 39, 40, 42, 43, and 44, where the state or tribal 401 certification (either generically or individually) does not roquire or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authnri7ed work docs not result to more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes slormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for sturmwater management requirements). Another important component of water quality management is the establishment and maintenance of vegetated buffers next to open waters, including streams (refer to General Condition 19 for vegetated buffer requirements for the NWPs). This condition is only applicable to projects that have the potential to affect water quality. While appropriate measures must be taken, in most cases it is not necessary to conduct detailed studies to identify such measures or to require momroring. 10. Coastal Zone Management. In certain states, an individual state coastal rune management consistency concurrence must be obtained or waived (see Section 330.4(d)). 11. rodangrred Species (a) No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed fm such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of .such species. Non-federal permitters shall notify the District Engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or is located in the designated critical habitat and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that may affect Federally -listed endangered or threatened species or designated critical habitat, the notification must include the name(s) of the endangered or threatened species that may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. As a result of formal or informal consultation with the FINS nr NMFS the District Engineer may add species-spocifir regional endangered species conditions to the NWPs. (b) Authurization of an activity by a NWP does nut authorize the "take" of a threatened or endangered species as defined wider the ESA. In the absence of separate authorization (e.g., an ESA Seclion 10 Permit, a Biological Opinion with "incidental take" pruvisiori etc.) from the USFWS or the NMFS, both lethal and nun -lethal "takes" of protected .species are in violation of the ESA. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the USFWS and NMFS or their world wide web pages at http://www.fws.gov/r9endspp/endspp.html and http://www.nfnis.gov/prot_res/esahrnne.litml respectively. 12. Historic Properties. No activity which may affect historic properties listed, or eligible for listing, in the National Register of I IiStoric Places is authorized, until the District Engineer has complied with the provisions of 31 CFR Part 325, Appendix C. • 0 The prospective permittee must notify the District Fngine.or if the authorized activity may affect any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe maybe eligible for listing on the National Register of Historic Places, and shall not begin the activity until notified by the District Fngineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can he obtained from the State Historic Preservation Office and the National Register of Historic Places (see 33 CFR 330.4(8)). For activities that may affect historic properties listed in, or eligible for listing in, the National Register of I hsmric Places, the notification must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. 13. Notification. (a) 'l iming: where required by the terms of the NWP, the prospective peirmttee must notify the District Engineer with a precunstruction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of (lie date of receipt and can request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the District Engineer will notify the prospective permittee that the notification is still incomplete and the PCN review process will not commence until all of the requested information has been received by the District Engineer. The pruspective permittee shall not begin the activity: (1) Until notified in writing by the District Fngineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division Lngineer; or (2) If notified in writing by the District or Division Engineer that an Individual Permit is required; or (3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittee has not received written notice from the District or Division Engineer. Subsequently, the permitter's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2). (b) Contents of Nalificntion;'The notification must be in writing and include the following Information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed project; (3) Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause, any other N WP(s), Regional General Fermit(s), or Individual Permit(s) used or intended to be used to authorize any part of the proposed project or any related activity. Sketches should be provided when necessary to show that the activity complies with the teens of the NWP (Sketches usually clarify the project and when provided result In a quicker decision.); (4) For NWPs 7, 12,14, 'IR, 21, 34, 39, 39, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds), and riffle and pool complexes (see paragraph 13(f)); (5) FDr NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurations of those areas of the facility where maintenance dredging or excavation is proposed; (6) For NWP 14 (Linear Transportation Crussings),'the PCN must include a compensatory mitigation proposal to offset permanent losses of waters of the US and a statement describing how temporary losses of waters of the US will be minimized to the maximum extent practicable; (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state - approved mitigation plan, if applicable, 'lo be authorized by this NWP, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that the adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this dchrmimation in writing; (8) For NWP 27 (Stream and Welland Restoration), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee; (9) For NWP 29 (Single -Family Housing), the PCN must also include: (i) Any past use of this NWI' by the Individual Permittee and/or the permitter, s spouse; (ii) A statement that the single-family housing activity is fora personal residence of the permittee; (iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring IA -acre or less will not require a formal un -site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property. For parcels greatenThan IA -acre in size, formal wetland delineation mu+t be prepared in accordance with the current method required by the Corps. (See paragraph 13(f)); (iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospective permillee's spouse, within a one mile radius of the parcel, in any form of ownership (including any land Owned as a partner, corporation, joint tenant, rn tenant, or as a tenant by-the-enfirety) and any land on which o purchase and sale agreement or other contract for 0 0 than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) are determined by the District Engineer. to be minimal, the District Fngmenr will provide a timely written response to the applicant. The response will state that the project can proceed under the terns and conditions of the NWP. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either: (1) that the project does not qualify for authorization under the NWP and instruct (he applicant on the procedures to smk authorization under an individual Permit; (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or conditions. Where the District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45 -day PCN period. The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, ora mitigation plan is required under item (2) above, no work in waters of the U'S will occur until the District Engineer has approved a specific mitigation plan. (e) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and cundi(ions of the NWPs and the need for mitigation to reduce the project's adverse environmental effects to a minimal level. For activities requiring notification to the District Engineer that result in the loss of greater than th-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or state offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS), With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer notice that they intend to provide substantive, site-specific comments. If sit contacted by an agency, the District Engineer will watt an additional 15 calendar days before making a decision on the notification, The District Engineer will fully consider agency comments received within the specified time frame, but will provide no response to the resource agency, except as provided below. the District Engineer will indicate in the administrative record assnriatod with each notification that the resource agenciesconcerns were. considered. As required by Section M5(b)(4)(B) of the Magnuson -Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (1) Wetland Delineations: Weiland delineations must be prepared in accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels less than'/4-acre in size). The permittee may ask the Corps to delineate the special aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the 45 -day period will not start until the wotland dclincation has been completed and submitted to the Corps, where appropriate. 14. Compliance Certification Every perm ttee who has received NWP verification from the Corps will .submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will include: (a) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit renditions; and (c) The signature of the permittee certifying the completion of the work and mitigation, 15 Use of Multiple Nalionunde Permits. the use of more than one NWP for a single and complete project is prohibited, except when the acreage loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit (e.g. if a road crossing over tidal waters is cunstructed under NWP 14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss of waters of the US for the total project cannot exceed 1/3 - acre). 16. Witter Supply 6dakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures car adjacent bank stabilization. 17. Shellfish Brils. No activity, including structures and work in navigable water, of the US or discharges of dredged or fill material, may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4. 18. Stufnhle Material. No arttvity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may consist of unsuitable material (eg., trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (.see Section 307 of the CWA). 19. Miligolion. The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset adverse effects on the aquatic environment that are more than minimal. (a) Tho project most be designed and constructed to avoid and minimize adverse effects to waters of the US to the 0 0 maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating) will be required it) the extent necessary to ensure that the adverse effects to the aquatic environment are minimal. (c) Compensatory mitigation at a minimum onc-fur-one ratio will be required for all wetland impacts requiring a PCN, unless the District Engineer detormines in writing that some other form of mitigation would be more environmentally appropriate and provides a project -specific waiver of this requirement. Consistent with National policy, the District Engineer will establish a preference for restoration of wetlands as compensatory mitigation, with preservation used only in exceptional circumstances. (d) Compensatory mitigation (re., replacement or substitution of aquatic resources for those impacted) will not he used to increase the acreage losses allowed by the acreage limils of some of the N WPs. For examp)e, '/mere of wetlands cannot be created to change a °!r -acre loss of wetlands to a th acre loss associated with NWP 39 verification. However, V, -acre of created wetlands can be used to reduce the impacts of a '/t -acre loss of wetlands to the mmirnum impact level in order to meet the minimal impact requirement associated with NWPs. (e) I to be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the sire of the project; establishing and maintaining wetland or upland vegetated buffers to protect open waters such as .streams; and replacing losses of aquatic resource functions and values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed. (f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., casements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated buffers will be the only compensatory mitigation required. Vegelated buffers should consist of native speous. The width of the vegetated buffers required will address documented water quality or aquatic habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet wide on each side of the stream, but the District Engineers may require slightly wider vegetated buffers to address documented water quality or habitat loss concerns. Where both wetlands and open waters exist on the project site, the Corps will determine the appropriate compensatory mitigation (v.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment on a watershed basis, In cases where vegetated buffers are determined to be the most appropriate form of compensatory mitigation, the District Engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland impacts, (g) Compensatory mitigatiun proposals submitted with the "notification" may be either conceptual or detailed. If conceptual plans are approved under the verification, then the Corps will condition the verification to require detailed plans be submitted and approved by the Corps prior to construction of (he authorized activity in waters of the US. (h) Permittees may propose the use of mitigation banks, in -lieu fee arrangements or separate activity -specific compensatory mitigation. In all cases that requite compensatory mitigation, the mitigation provisions will specify the party responsible fur accomplishing and/or complying with the mitigation plan. 20. SFnrruning Arens. Activities, including stmctures and work in navigable waters of the US or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.p,., excavate, fill, or smother downstream by substantial turbidity) of an important spawning arca are not authorized. 21. Manngerrrerrl of Water Flame. To the maximum extent practicable, the activity must be designed to maintain precon.struction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the activity must not permanently restrict or impede rhe passage of normal or expected high flows (unless the primary purpose of the fill is to impound waters) and the structure or di5charge of dredged or fill material must withstand expected high flows. The activity must, to the maximum extent prmcticnble, provide for retaining excess flows from the site, provide for maintaining surface flow rates from the site similar to preconsliuction conditions, and provide for not increasing water flows from the project site, relocating water, or redirecting water flow beyond preconstruclion conditions. Stream channelizing will be reduced to the minimal amount necessary, and the activity must, to the maximum extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unless the activity is part of a larger system designed hm manage water flows, In most cases, it wilt not be a requirement to conduct detailed studies and monitoring of water flow. this condition is only applicable to projects that have the potential to affect waterflows. While appropriate measures must he taken, it is not necessary to conduct detailed .studies to identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps will defer to state and local authorities regarding management of water flow. 22, Adverse E,ffrcls Frain lmpuumfinenfs. If the activity creates an impound moot of water, adverse effects to the aquatic system due to the acceleration of the passago of water, and/or the restricting its flow shall be minimized to the maximum extent practicable. This includes structures and work in navigable waters of the US, or discharges of dredged or fill material, 23. Wnrrrfavd Brerdiug Arens, Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, into hreodmg areas for migratory waterfowl must be avoided to the maximum extent practicable. 24. Removal of Temporary, Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation. 25. Orsignated Critical Resource Writers. Critical resource waters include, NCAA -designated marine sanctuaries, National 0 0 Estuarine Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, state natural heritagesites, and outstanding national resource waters or other waters officially designated by a state as having particular environmental or uculogical significance and identified by the District Engineer after notice and opportunity for public comment. ,flit District Engineer may also designate additional critical resource waters after notice and opportunity for comment. (a) Except as noted below, discharges of dredged or fill material into waters of the US are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity within, or directly affecting, ci ilical resource waters, including wetlands adjacent to such waters. Discharges of dredged or fill materials into waters of the US may be authorized by the above NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 7. Further, such discharges may be authorized in designated critical habitat for Federally listed threatened or endangered species 011ie activity complies with General Condition 11 and the USFWS or the NMFS has concurred in a determination of compliance with this condition. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with General Condition 13, fur any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The Distncl Engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minima). 26. Fills Within 100 -Year Floodplains. For purposes of this Central Condition, 100 -year flrrodplains will be identified through the existing federal Emergency Management Agency s (FEMA) Flood Insurance Rate Maps or FEMA -approved local floodplain maps. (a) Discharges in floodplain; Below Headrvalers. Discharges of dredged or fill material into waters of the US within the mapped 100 -year floodplain, below headwaters (i.e. five cis), resulting in permanent above -grade fills, are not authorized by NWPs 39, 40, 42, 43, and 44. (b) Discharges in F7oodrvay; Above Hcadumlem. Discharges of dredged or fill material into waters of the US within the FF.MA Or locally mapped floodway, resulting in permanent abuve-grade tills, are not authorized by NWPs 39, 40, 42, and 44. (c) "Ihe per not lice must comply with any applicable FEMA -approved state or local (loud plain management requirements. 27. Construction Period. For activaies that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the N WP (or modification or revocation date), the. work must be completed within 12 months after such dale (including any modification that affects the project). For activities that have been verified and the project was commenced or under contract to commence within the verification period, the work must be completed by the date determined by the Corps. For projects that have been verified by the Corps, an extension of a Corps appruved completion date may be requested. This request must be submitted at least one month before the previously approved completion date. 3. Regional Conditions for the Los Angeles District In accordance with General Condition Number 6, "Regional and Case -by Case Conditions," the following Regional Conditions, as added by the Division Engineer, must be met in order for an authorization by any Nationwide to be valid: I. For coastal watersheds frnm the southern reach of the Santa Monica Mountains in Los Angeles County to the San LUIS Obispo County/Monttrey County boundary, all road crossings most employ a bridge crossing design that ensures passage and/or spawning of steelhcad (Oncnrlrynchus myki.ss) is not hindered in any way. In these areas, bridge designs that span the stream or river, including designs for pier- or pile -supported spans, or designs based on use of a bottomless arch culvert simulating the natural stream bed (i.e., substrate and btreamflow conditions in the culvert are similar to undisturbed stream bed channel conditions) shall be employed unless it can be demonstrated the stream or river dues nut support resources conducive to the recovery of federally listed Anadromans snlmonids, including nugralion of adults and smolts, or rearing and spawning, This proposal also excludes approach embankments into the channel unless they are determined to have no detectable effect on steelhcad. For the State of Arizona and the Mojave and Sonoran (Colorado) desert regions of Calder roa in Los Angeles District (generally north and cast of the San Gabriel, San Bernardino, San Jacinto, and Santa Rusa mountain ranges, and south of Lill le Lake, Inyo County), no nationwide permit, except Nationwide Permits I (Aids to Navigation), 2 (Snvclures in Artificial Canals), 3 (Maintenance), 4 (Fish and Wildlife I larveermg, Enhancement, and Attraction Devices and Activities), 5 (Scientific Measurement Devices), 6 (Survey Activities), 9 (Structures in Fleeting and Anchorage Areas), to (Mooring Buoys), I I (temporary Recreational Structures), 20 (Oil Spill Cleanup), 22 (Removal of Vessels), 27 (Strearn and Wetland Restoration Activities), 30 (Moist Soil Management for Wildlife), 31 (Mai olenance of Existing Flood Control Projects), 32 (Completed Enforcement Actions), 35 (Maintenance Dredging of Existing Basins), 37 (Emurgency Watershed Protection and Rehabilitation), and 38 (Cleanup of Hazardous and Toxic Waste), or other na tionwidn or regional general permits that specifically authorize maintenance of previously authorized structures or fill, can be used to authorize the discharge of dredged or fill material into a jurisdictional special aquatic site as defined at 40 CFR Part 230.40-4.5 (.sanctuaries and refuges, wetlands, mudflats, vegetated shallows, coral reefs, and riffle -and -pool complexes). 3. For all projects proposed for authorization by nationwide or regional general permits where prior notification to the District Engineer is required, applicants must provide color photographs or color photocopies of the project area taken from representative prints documented on a site map. Pre -project photographs and the site map would be provided with the permit application. Photographs should represent conditions typical or indicative of the resources before impacts. 4. Notification pursuant to general condition 13 shall be required for projects in all spacial aquatic sites as defined it 40 CFR Part 230.40-45 (sanctuaries and refuges, wetlands, mudflats, vegetated shallows, coral reefs, and riffle -and -pool complexes), and in all perennial watercourses or waterbodies in the State of Arizona and the Mojave and Sonoran (Colorado) desert regions of California in Los Angeles District (generally north and east of the San Gabriel, San Bernardino, San Jacinto, and Santa Rosa mountain ranges, and south of Little Lake, Inyo County), excluding the Colorado River from Davis Dam downstream to the north end of Tupuck and downstream of Imperial Dam. 5. Notification pursuant to general condition 13 shall he required for projects in all areas designated as Essential Fish Habitat by the Pacific Fishery Management Council (i.e., all tidally influenced areas). 6. Notification pursuant to general condition 13 shall be required for projects in all watersheds in the Santa Monica Mountains in Los Angeles and Ventura counties bounded by Calleguas Creek on the west, by Highway 101 on the north and east, and by Sunset Boulevard and Pacific Ocean on the south. 7. Individual permits shall be required for all jurisdictional vernal pools, 8. Individual permits shall be required In Murrieta Creek and Temecula Creek watersheds in Riverside County fur new permanent fills in perennial and intermittent watercourses otherwise authorized under NWPs 39, 42 and 43, and in ephemeral watercourses for these NWPs for projects that impact greater than 0.1 acre. 9. Individual permits shall be required in San Luis Obispo Creek and Santa Rosa Creek in San Lu s Obispo County for bank stabilization projects, and in Gaviota Creek, Mission Creek and Carpinteria Creek in Santa Barbara County for bank stabilization projects and grade control structures. Further information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: ( ) 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). 2. Limits of this authorization. (a) Thin permit does not obviate the need to obtain other Federal, state, or local authorizations required by law, (b) This permit does not grant any property rights or exclusive privi loges, (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 Liabilityfn 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 unpermnted activities or from 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 Unit(A States in the public interest. (c) Damages to persons, property, or to other permitted or unpermined activities or structures caused by the activity authorized by this permit. (d) Design or cunAruction deficiencies associated with the permitted work. (e) Damage claims associated with any future modification, suspension, or revocation of this permit. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in rnliance on the infurmatiun you provided 5. Reevaluation of Permit Decibiun. this office may reevaluate its decision on this permit at any time the circumstances warrant. 0 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). (c) Significant new information surfaces which this office did not cunsider 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 .430.5 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement prucedures provide fur the issuance of an administrative order requiring you to comply with the turrns and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measure 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. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissued, revoked, or expires before that time. 7. 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 I below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good fatlh transfer, you must obtain a modification of this permit fiom this office, which may require restoration of the area. 8. 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 fit validate the transfer of this authorization. 9. You must allow representatives from this office to inspect the authorized activity at any time devoted necessary to ensure that it is being or has been accomplished with the terms and conditions of your permit. 0 0 California Regional Water Quality Control Board San Diego Region Terry Tamnssnen ,to t rw�, 1 wwwswao u.gevtrw4con Sa: retnryfm 9174 Sky Park Coun, Sano 100, San Diego. California 92123 FAWronm,wal Pbone (858) 4672952 1 FAX (858) 571-6972 Prntet(!nn Action on Request for Clean Water Act section 401 Water Quality Certification and Waiver of Waste Discharge Requirements for Discharge of Dredged and/or Fill Materials PROJECT: Trabuco Creek Bridge (File No. 04C-017) APPLICANT: Min Saysay, Right -of -Way Manager Orange County Transportation Authority 550 South Main Street, 14184 Orange, CA 92683-1584 ACTION: ❑ Order for Low Impact Certification ❑ Order for Denial of Certification ■Order for Technically -conditioned ■Waiver of Waste Discharge Certification Requirements STANDARD CONDITIONS: Arnold Sehwarzenegger Govrmar The following three standard conditions apply to all certification actions, except as noted under Condition 3 for denials (Action 3). 1. This certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to section 13330 of the California Water Code and section 3867 of Title 23 of the California Code of Regulations (23 CCR). 2. This certification action is not intended and shall not be construed to apply to any discharge from any activity involving a hydroelectric facility requiting a Federal Energy Regulatory Commission (FERC) license or an amendment to a FERC license unless the pertinent certification application was filed pursuant to 23 CCR subsection 3855(b) and the application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought. 3. The validity of any non -denial certification action (Actions I and 2) shall be conditioned upon total payment of the full fee required under 23 CCR section 3833, unless otherwise stated in writing by the certifying agency. Catifornia Environmental Protection Agency Re,yrird Pap,, ¢a II EXHIBIT "D" 4 11 Orange County Transportation Authority ADDITIONAL CONDITIONS: 0 File No. 04C-017 In addition to the three standard conditions, the Orange County Transportation Authority shall satisfy the following: A, GENERAL CONDITIONS 1. The Orange County Transportation Authority shall, at all times, fully comply with the engineering plans, specifications and technical reports submitted with this application for 401 Water Quality Certification and all subsequent submittals required as part of this certification. 2. The Orange County Transportation Authority shall maintain a copy of this certification at the project site so as to be available at all times to site personnel and agencies. 3. Prior to the start of the project, the Orange County Transportation Authority shall educate all personnel on the requirements in this Certification, pollution prevention measures, spill response, and materials management. 4. The Orange County Transportation Authority shall permit the Board or its authorized representative at all times, upon presentation of credentials: a) Entry onto project premises, including all areas on which wetland fill or wetland mitigation is located or in which records are kept. b) Access to copy any records required to be kept under the terms and conditions of this certification. c) Inspection of any treatment equipment, monitoring equipment, or monitoring method required by this certification. d) Sampling of any discharge or surface water covered by this Order. 5. The Orange County Transportation Authority shall notify the Regional Board within 24 hours of any unauthorized discharge to waters of the U.S. and/or State; measures that were implemented to stop and contain the discharge; measures implemented to dean -up the discharge; the volume and type of materials discharged and recovered; and additional BMPS or other measures that will be implemented to prevent future discharges. 6. The Orange County Transportation Authority shall, at all times, maintain appropriate types and sufficient quantities of materials onsite to contain any spill or inadvertent release of materials that may cause a condition of pollution or nuisance if the materials reached a waters of the U.S. and/or State. 7. ,This Certification is not transferable to any person except after notice to the Executive Officer of the San Diego Regional Water Quality Control Board (Regional Board). The applicant shall submit this notice in writing at least 30 days in advance of any proposed transfer. The notice must include a wnttcn agreement between the existing and new owner 2 of 12 E Orange County Transportation Authority E File No. 04C-017 containing a specific date for the transfer of this Certification's responsibility and coverage ....--- ------- between the current discharger and the new discharger. This agreement shall include an acknowledgement that the existing owner is liable for compliance and violations up to the transfer date and that the new owner is liable from the transfer date on. 8. In the event of any violation or threatened violation of the conditions of this certification, the violation or threatened violation shall be subject to any remedies, penalties, process or sanctions as provided for under state law. For purposes of section 401(d) of the Clean Water Act, the applicability of any state law authorizing remedies, penalties, process or sanctions for the violation or threatened violation constitutes a limitation necessary to assure compliance with the water quality standards and other pertinent requirements incorporated into this certification. 9. In response to a suspected violation of any condition of this certification, the Regional Water Quality Control Board (RWQCB) may require the holder of any permit or license subject to this certification to furnish, under penalty of perjury, any technical or monitoring reports the RWQCB deems appropriate, provided that the burden, including costs, of the reports shall be a reasonable relationship to the need for the reports and the benefits to be obtained from the reports. 10. In response to any violation of the conditions of this certification, the RWQCB may add to or modify the conditions of this certification as appropriate to ensure compliance. 11. No additional riprap (or similar energy dissipation material), other than planned to provide fish passage, shall be placed within the channel bed without consulting with the Regional Board and CDFG. _ 12. Construction activities within the channel bed shall not occur during rain events. 13. Material and equipment staging areas shall be located outside of the active channel and banks. 14. Best management practices (BMPs) shall be used during construction to prevent the discharge of pollutants and unanticipated disruption to the channel bed. a) A construction BMP plan addressing all phases of construction shall be kept on site, implemented, and revised as necessary to address shortcomings. i. The BMF plan shall address potential pollution discharges from all phases of construction, including, but not limited to; I. Concrete pumping; 2. In -channel construction; 3. Crane placement, operation, and maintenenace; 4. Stockpiles and materials management; 5. Staging areas; 6. Low -flow bypass; 7. Equipment maintenance and fueling. 3 of 12 Orange County Transportation Authority 0 File No. 046017 b) The BMP plan shall be explained to on-site personnel prior to the start of construction, and to new coritractois/personnel as they begin work. c) The BMP plan shall include a weather -triggered action plan to prepare the site in advance of rains to prevent the discharge of pollutants in stormwater and rising creek flows. d) The BMP plan shall include provisions for routine visual monitoring of creek conditions. When discharges or potential discharges are found to occur, BMPs must be immediately improved. i. Any discharges of construction -related materials shall be reported to the Regional Board within 24 hours. e) Structural BMPs shall be designed and used to prevent a net inciease in sediment from the project site. i. Downstream sediment concentrations shall be visually inspected each day that equipment is operating within the channel bo(tom, and BMPs shall be improved whenever concentrations of sediment within the water appear to be increasing. 15. Flow diversions during construction shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all times that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 16. This Certification does not address dewatering; separate authorization will be required from the Regional Board (per Regional Board Order No. 119-2001-96) for any dewatering impacts. B. POST CONSTRUCTION STORM WATER MANAGFMENT The Orange County Transportation Authority shall regularly inspect the project area and immediate downstream vicinity for effects from the project on sediment transport through the project area. a) If significant scour, sediment aggradation, bank erosion, or other such impacts have occurred as a result of the project's influence on stream velocities, the Orange County Transportation Authority shall propose appropriate mitigation measures to the Regional Board within 30 days of discovery. b) The Orange County Transportation Authority shall document these inspections and provide the Regional Board a summary upon request by the Regional Board. 4 of 12 C� C Orange County Transpomlion Authority File No. 04C-017 .-- - - -- . — -C. MITIGATION Mitigation for permanent impacts to 0.0335 acres resulting from this project, will be achieved by the implementation of aquatic habitat improvement measures in the project vicinity, including retrofitting the existing grade control structure to provide for a fish passage to accommodate steelhead trout migration. a) The Orange County Transportation Authority shall implement a Trabuco Creek Fish Access Project that is approved in writing by the California Department of Fish and Game and the National Oceanic and Atmospheric Administration. b) The Orange County Transportation Authority shall provide the Regional Board with a copy of the approved fish passage plan at least 60 days prior to initiation of construction activity. c) Habitat mitigation measures shall be completed within 90 days following completion of bridge replacement activities. 2. The Orange County Transportation Authority shall submit a report (including topography maps and cross-sections) to the Regional Board within 90 days of project completion, describing as -built status of the project, including the restored area of temporary disturbance and habitat mitigation efforts described in Condition C.1. above. 3. If at anytime during the implementation and establishment of the mitigation area(s), and prior to verification of meeting success criteria, a catastrophic natural event (e.g., fire, flood) occurs and impacts the mitigation area, Orange County Transportation Authority shall be responsible for repair and replanting of the damaged area(s). 4. Mitigation monitoring reports shall be submitted annually until mitigation has been deemed successful. Monitming reports shall be submitted no later than 30 days following the end of the monitoring period. Monitoring reports shall include, but not be limited to, the following: a) Names, qualifications, and affiliations of the persons contributing to the report; b) Tables presenting the raw data collected in the field as well as analyses of the physical and biological data; c) Qualitative and quantitative comparisons of current mitigation conditions with pre -construction conditions and previous mitigation monitoring results; d) Photodocumentation from established reference points; e) Survey report documenting boundaries of mitigation area; and I) Other items specified in the draft and final Wetland and Riparian Mitigation and Monitoring Plan. D. REPORTING 1. All information requested in this Certification is pursuant to California Water Code (CWC) section 13267. Civil liability may be administratively imposed by the Regional Board for failure to furnish requested information pursuant to CWC section 13268. 5 of 12 0 Orange County Transportation Authority • Filc No. 04C-017 All applications, reports or tnformationstibmiffedfoifie RegTonal$oariT sli`alllic sigiicd and certified as follows: V certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility offine and imprisonment." 3. The Orange County Transportation Authority shall submit reports required under this certification, or other information required by the Regional Board, to: Executive Officer California Regional Water Quality Control Board San Diego Region Attn: 401 Certification; File No 04C-017 9174 Sky Park Court, Suite 100 San Diego, California 92123 6or 12 0 0 Orange County Transportahun Authority File No. 04C-017 PUBLIC NOTIFICATION OF PROJECT APPLICATION: On February 9, 2004 receipt of the project application was posted on the SDRWQCB web site to serve as appropriate notification to the public. REGIONAL WATER QUALITY CONTROL BOARD CONTACT PERSON: Jeremy Haas California Regional Water Quality Control Board, San Diego Region 9174 Sky Park Court, Suite 100 San Diego, CA 92123 8581167-2735 haasj@rb9,swreb.cEt.gov WATER QUALITY CERTIFICATION: I hereby certify that the proposed discharge from the Trabuco Creek Bridge project (File No. 04C-017) will comply with the applicable provisions of sections 301 ("Effluent Limitations"), 302 ("Water Quality Related Effluent Limitations"), 303 ("Water Quality Standards and Implementation Plans"), 306 ("National Standards of Performance'), and 307 ("Toxic and Pretreatment Effluent Standards") of the Clean Water Act. This discharge is also regulated under California Regional Water Quality Control Board, San Diego Region, Waiver of Waste Discharge Requirements (Waiver Policy) No, 17. Please note that this waiver is conditional and, should new information come to our attention that indicates a water quality problem, the Regional Board may issue waste discharge requirements at that time. Except insofar as may be modified by any preceding conditions, all certification actions are contingent on (a) the discharge being limited and all proposed mitigation being completed in strict compliance with the applicants' project description and/or on the attached Project Information Sheet, and (b) on compliance with all applicable requirements of the Regional Water Quality Control Board's Water Quality Control Plan (Basin Plan). recut J H.ROBERTUS ecutive Officer Regional Water Quality Control Board 5 0�2 . -V" i Date Attachments: 1. Project Information 2. Distribution List 3. Location Map 4. Site Photo 7 of 12 Orange County Transportation Authority File No. 04C-017 ATTACHMENT 1 PRUJEC r INFORMATION— Applicant. Min Saysay, Right -of -Way Manager Orange County Transportation Authority 550 South Main Street, 14184 Orangb,CA 92683-1584 714-560-5737 fax: 714-567-5983 msaysay@octa.net Applicant Chris Coffman Representatives: DMJM & Harris 515 S. Flower St., 96 Floor Los Angeles, CA 90071 213-593-8343 fax:213-593-8601 chris.coffman@dmj mharrixcom Project Name: Trabuco Creek Bridge (File No. 04C-017) Project Location: The project is located in the City of San Juan Capistrano, at the railroad crossing over Trabuco Creek, and west of the intersection of Canino Capistrano and Junipero Serra Road. The site is between the continence of Trabuco Creek and Oso Creek and the 1-5 freeway. (San Juan Capistrano USGS quadrangle) Type of Project: Rail Bridge Replacement Project Description: The major components of this proposed rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of 8 -inch thick reinforced concrete encasement. The .existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will he required within the streambed during construction of the 8 -inch encasement. Lifting equipment will be required within the streambed during placement of the bridge superstructure. Federal Ageney/Permit: U.S. Army Corps ol'Enginecrs § 404, NWP 14 Other Required Regulatory CDFG Streambed Alteration Agreement Approvals: 8 of 12 a • • Orange County Transportation Authority file No. 04C-017 California.Environmental__The-applicams.have stated -the project-is.CEQA. exempt per a statptoy----- - - -- - . Quality Act (CEQA) Notice of Exemption issued by the Southern California Rail Authority on Compliance: September 17, 1991 for the Southern California Regional Rail Authority Commuter Rail System. Receiving Water: Trabuco Creek (HSA 901.23) Impacted Waters of the ,Temporary: United States: 0.0335 acres of streambed 'Permanent: 0.0028 acres of streambed Dredge Volume: Na Related Projects The applicant will he replacing bridges for the same line over Aliso Creek Implemented/to be (401 file no. 04C-23) and Santiago Creek (Santa Ana Regional Board Implemented by the jurisdiction). In the future, the applicant plans to construct a second Applicam(s): bridge at the same location to provide double -tracking opportunities. Compensatory Mitigation: Temporary impacts will be restored to pre -project conditions, Compensatory mitigation for permanent impacts will be at a 1:1 ratio for streambed habitat and will include the addition of boulders and pools to the bridge's existing grouted riprap and concrete grade control structure in order to improve conditions for fish passage. (see Attachment 4, Figure 2.) Best Management The project is planned to minimize time spent in the creekbed, and Practices: sediment and erosion control BMPs will be used to prevent excessive scour. Public Notice: On February 9, 2004 receipt of the project application was posted on the SDRWQCB web site to serve as appropriate notification to the public. Fees: Total Due: $586.50 Total Paid: $586.50 (check No. 149817): 9 of 12 L Change County Transportntion Authority 0 ATTACHMENT 2 _._.---DTSTRTBD7Ti)ftZIS"I---'- — Dan Swenson U.S. Army Corps of Engineers Regulatory Branch P.D. Box 532711 Los Angeles, CA 90053-2325 (213) 452-4196 (fax) State Water Resources Control Board Division of Water Quality Donna Cobb California Department of Fish and Game Chris Coffman DMJM & Hams 515 S. Flower St., 9'a Floor Los Angeles, CA 90071 10 of 12 File No. 04C-017 0 Orangc County Transportation Authority 0 ATTACHMENT 3 -LOCATION-MAPS Project Location maps from applicant. File No, 04C-017 Vlgure I Vloclry Map 11 of 12 1 i 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 PAx wwwsanjuancapistrano. org TRANSMITTAL TO: Eric Hankinson, PE RailPros, Inc. 192 Technology Drive, Suite R Irvine, CA 92618 FROM: Maria Guevara, Deputy City Clerk (949) 443-6309 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDUN June 27, 2006 SUBJECT: License Agreement —Substructure Improvement for the Trabuco Creek Bridge at mile Post 195.6 — Phase I of II An original, executed agreement is enclosed for your records. If you have questions regarding specifics of your agreement or work with the city, please contact Brian Perry, Senior Civil Engineer (949) 443-6353. CC: Brian Perry, Senior Civil Engineer; Michelle Perea, Administrative Assistant San Juan Capistrano: Preserving the Past to Enhance the Future E TO: A s SITUATION: fivcsT KC -I t Cr✓ ta141CO ember 1, 2006 On June 26, 2006, the City of San Juan Capistrano entered into a License Agreement with OC Transportation Authority (OCTA) for Substructure Improvements for the Trabuco Creek Bridge at Mile Post 195.6 — Phase I of II. ACTION REQUESTED: Said Agreement states services shall be completed by December 31, 2006; Please notify our office if agreement has been completed or will be extended. ACTION TO BE TAKEN: Nom— "t45 DATE WHEN NEXT ACTION (S) SHOULD BE TAKEN: SIGNATURE OF OFFICIAL TAKING ACTION: DATESIGNED: 'FOR CITY CLERK'S DEPARTMENT USE ONLY' Tickler Date: 12/01/2006 Deadline Date: 12/31/2006 (600.50%cta) 0 SUPPLEMENTAL AGENDA REPORT AGENDA ITEM D14 TO: Dave Adams, City Manager\� • 6/06/2006 FROM: Kathleen Springer, Acting Public Works Director SUBJECT: Consideration of License Agreement for Phase I of II (Trabuco Creek Bridge Superstructure) (Orange County Transportation Authority)(Southem California Regional Rail Authority) By motion, Approve the Phase I of II License Agreement (Attachment 2) between the City, Orange County Transportation Authority (OCTA) and Southern California Regional Rail Authority (SCRRA), to replace the superstructure at the Trabuco Creek Bridge crossing. This agreement contains specific language regarding the City's Trail System in Section 5 which would require the creation of one, twelve -foot wide bench in order to connect the existing trail at the Trabuco Creek Bridge; and, 2. Authorize the Mayor to sign the Phase I License Agreement. SITUATION: Staff has reviewed the potential for the trail system at the Trabuco Creek Bridge with members of the Parks, Recreation and Equestrian Commission and OCTA. Staff and OCTA have reached agreement and recommend that the Section 5 language recommended by Staff be changed from a twenty (20) foot trail to a twelve (12) foot trail and that the following language reflecting this change be used in Section 5: 5. Trail System As consideration for the rights given hereunder, Licensee agrees to modify project design plan, pursuant to City's request to accommodate one (1) twelve (12) foot wide bench, suitable for hiking, bicycling, and equestrian use. This bench shall be adjacent to the south abutment. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: The trail area under consideration was informally reviewed separately by members of the Parks, Recreation and Equestrian Commission FINANCIAL CONSIDERATIONS: Not applicable. NOTIFICATION: Metrolink Orange County Transportation Authority Railpros Southern California Regional Rail Authority RECOMMENDATION: By motion, 1. Approve the Phase I of If License Agreement (Attachment 2) between the City, Orange County Transportation Authority (OCTA) and Southern California Regional Rail Authority (SCRRA), to replace the superstructure at the Trabuco Creek Bridge crossing. This agreement contains specific language regarding the City's Trail System in Section 5 which would require the creation of one twelve -foot wide bench in order to connect the existing trail at the Trabuco Creek Bridge, and 2. Authorize the Mayor to sign the Phase I License Agreement, Respectfully s�, Kathleen Springer Acting Public Works Director KS/MP • 6/6/2006 AGENDA REPORT TO: Dave Adams, City Manager 9(^ FROM: Kathleen Springer, Acting Public Works Director SUBJECT: Consideration of License Agreement for Phase I of II (Trabuco Creek Bridge Superstructure) (Orange County Transportation Authority) (Southern California Regional Rail Authority) RECOMMENDATION: By motion, Approve the Phase I of 11 License Agreement between the City, Orange County Transportation Authority (OCTA), and Southern California Regional Rail Authority (SCRRA), to replace the superstructure at the Trabuco Creek Bridge crossing. This agreement contains specific language regarding the City's Trail System in Section 5, which would require the creation of one twenty -foot wide bench in order to connect the existing trail at the Trabuco Creek Bridge, and 2. Authorize the Mayor to sign the Phase I License Agreement. SITUATION: In Fall 2004, the Orange County Transportation Authority (OCTA) informed the City that the superstructure located at the Trabuco Creek needed to be replaced due to its age. In order to replace the superstructure, the contractors working on behalf of OCTA and the Southern California Regional Rail Authority (SCRRA) need access to a portion of the City's North Open Space area. The project will involve two phases. The first phase consists of abutment improvements, which encompasses adding steel bars to reinforce existing concrete abutment facings, and the addition of an 8 -inch concrete encasement of existing piers and abutments. The work will take approximately twelve weeks to complete. During this phase, crews will be working within the railroad right-of-way at the creek. Access to the work site will be from Camino Capistrano through the City's open space on the equestrian trail. Phase II will include a staging area located on the parcel described as APN 121-050-19, to the north of the Silverado Assisted Living property, as shown in the Exhibits to the proposed Agreement (Attachment 2). The contractor would like to use this staging area for a lay down yard and access to the work site, which will require some grading. To erect the bridge girder, a large crane will have to be staged here as well. The contractor forwarded a Request for Permit Amendment to the Department of Fish and Game on AGENDA REPORT • • June 6, 2006 Page 2 January 28, 2005, to include additional impacts such as the upland staging area, access road, expanded work area, and two temporary SDG&E power pole locations. These areas increase the originally permitted 0.034 -acre by 2.81 acres. A copy of their request and the approval from the Department of Fish and Game are included as exhibits to the license agreement. Prior to Phase II beginning, SDG&E will need to relocate their transmission line out of the railroad right-of-way. A map from SDG&E, which is included as an exhibit in the license agreement indicates the location to which the two poles will be temporarily relocated during the course of this work. Upon project completion, the lines will be returned to their original locations on the railroad right-of-way. MCI, currently in the railroad right-of-way will also be temporarily relocated to the SDG&E poles and will also be returned to their original locations in the railroad right-of-way upon project completion. A second license agreement for Phase II will be presented to the City Council for consideration prior to the completion of the Phase I work. In negotiating this agreement, as consideration for the work being performed on City property, staff requested that the trail system at the Trabuco Creek Bridge be connected via the creation of a twenty -foot bench. Section 5 language is proposed by City staff as follows: 5. Trail Svstem As consideration for the rights given hereunder, Licensee agrees to modify project design plan, pursuant to City's request to accommodate one (1) twenty (20) foot wide bench, suitable for hiking, bicycling, and equestrian use. This bench shall be adjacent to the south abutment. As a lesser option, OCTA has offered to replace the rip rap in the area and because of time constraints and permit issues has informed staff that the creation of the twenty -foot bench is not possible. OCTA has proposed Section 5 language as follows: 5. Trail &stem As part of the substructure rehabilitation, LICENSEE will remove grouted rip rap adjacent to the south abutment in order to perform rehabilitation to the bridge substructure. In consideration of the City's potential future trail system expansion, LICENSEE shall replace the grouted rip rap in a manner such that it will accommodate potential future hiking, bicycling, and equestrian use. Section 5 language noted above is the only variation between the two Agreements. Staff has, therefore, not provided a copy of the OCTA proposed Agreement with this report. The City Attorney has approved both versions as to form, and a copy of the Alternative Agreement is available for review in the Public Works Department. Staff believes that time restriction and permits to perform this work can be resolved by OCTA and recommends that City Council approve the license agreement which includes the requirement to provide the trail bench. AGENDA REPORT • • June 6, 2006 Page 3 COMMISSIO /BOARD REVIEW AND RECOMMENDATIONS: Not Applicable. FINANCIAL CONSIDERATIONS: Not applicable. NOTIFICATION Metrolink Orange County Transportation Authority Railpros Southern California Regional Rail Authority Silverado Senior Living Equestrian Coalition Committee RECOMMENDATION By motion, 1. Approve the Phase I of II License Agreement between the City, Orange County Transportation Authority (OCTA) and Southern California Regional Rail Authority (SCRRA), to replace the superstructure at the Trabuco Creek Bridge crossing. This agreement contains specific language regarding the City's Trail System in Section 5 which would require the creation of one twenty -foot wide bench in order to connect the existing trail at the Trabuco Creek Bridge; and 2. Authorize the Mayor to sign the Phase I License Agreement. Respectfully submitted, Kathleen Spring r Acting Public Works Director Attachments: 1. Location Map 2. License Agreement (City staff recommendation requiring the trail system bench in Section 5) KS/mp ocation Map 0 3000 6000 Feet City Boundary Streets Creeks ATTACHMENT 0 CITY OF SAN JUAN CAPISTRANO LICENSE AGREEMENT Substructure Improvements for the Trabuco Creek Bridge at Mile Post 195.6 — Phase I of II THIS LICENSE AGREEMENT is made this day of 2006, by and between the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "CITY" and the ORANGE COUNTY TRANSPORTATION AUTHORITY ("OCTA"), and the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY ("SCRRA"), hereinafter referred to as "LICENSEE" WHEREAS, OCTA is a joint entity with SCRRA; and, WHEREAS, LICENSEE wishes to make improvements in two (2) phases to the Trabuco Creek bridge, a two (2) span, one -hundred and eighty-one (181) foot long deck plate girder bridge, located at milepost 195.8; and, WHEREAS, This bridge is approximately eighty (80) years old and the girders are approaching the end of their design service lifetime, with marginal allowance for new and heavier train axle loads to pass over the bridge safely; and, WHEREAS, LICENSEE desires to access their bridge substructure via the City's land, more particularly described as the northwest open space ("NWOS"), APN 121-050-19 and APN 121-050-21 and as depicted on the site plan attached as Exhibit "A".; and, WHEREAS, LICENSEE would also like to stage construction equipment, personnel, and supplies on a portion of the NWOS north of the Silverado Senior Living facility; and, WHEREAS, LICENSEE desires to use portions of the City property to facilitate the passage of vehicle and workers, to park and stage vehicles, equipment, and supplies ("Permitted Activities") and the City in the spirit of interjurisdictional cooperation desires to grant LICENSEE permission to engage in Permitted Activities on the property. WHEREAS, The first phase of work will consist of; encasing the existing cast -in-place substructure with a 6" layer of concrete to prolong the service life of the existing substructure, and making related improvements; and, ATTACHMENT 0 0 WHEREAS, The second phase of work requires LICENSEE to replace the existing steel girders and will require relocation of certain existing utilities; and, NOW, THEREFORE BE IT DETERMINED, City and LICENSEE agree as follows: 1. Grant of License The CITY hereby grants to LICENSEE a license right to use a portion of City - owned open space land (more particularly shown on the plan titled "Trabuco Creek Bridge Project Temporary Impact Areas," attached hereto as Exhibit "B", and incorporated herein by reference) for the purpose of completing this work, subject to all of the conditions contained within this License Agreement. 2. Property to be Licensed LICENSEE's access to the Trabuco Bridge area shall be limited to the south end of the open space property, as shown on Exhibit "C", attached and incorporated herein by reference and more specifically defined as APN 121-050-21. It is expressly understood that this license agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the property to LICENSEE. LICENSEE may enter into the south end of the NWOS property, as shown on Exhibit "C", more specifically defined as APN 121-050-19, attached and incorporated herein by reference. The LICENSEE may enter into APN 121-050- 19 via the construction access as described in APN 121-050-21. The use of the southern portion of APN 121-050-19 shall be limited to the construction of improvements to and near the Trabuco Creek Bridge, and as shown on plans entitled "Trabuco Creek Bridge at MP195.8 Superstructure Replacement", which are available for review in the City's Public Works Department. 3. Time of Work Hours of construction work shall be restricted to 7:00 a.m. to 4:00 p.m., weekdays, and shall exclude weekends, except that delivery of certain materials may be further restricted by the City Engineer based on traffic impacts as outlined below. All construction will be completed within twelve (12) weeks. Night and weekend work shall be prohibited. 4. Water Quality The San Diego Regional Water Quality Control Board (RWQCB) has issued a permit which governs stormwater and non-stormwater discharges resulting from areas owned and operated by the County of Orange, Orange County Flood Control District and incorporated cities of Orange County (collectively referred to as Permittees). The RWQCB permit is a National Pollutant Discharge Elimination System (NPDES) Permit No. R9-2002-0001, respectively. A copy of the RWQCB permit is available in the Public Works Department for review. 0 In order to comply with the Permit requirements, the Permittees have developed a Drainage Area Management Plan (DAMP) which contains Model Maintenance Procedures with Best Management Practices (BMPs) that parties conducting the municipal activities must adhere to. These Model Maintenance Procedures apply to any party conducting municipal activities and contain pollution prevention and source control techniques to minimize the impact of those activities upon dry - weather urban runoff, stormwater runoff and receiving water quality. Work performed under this License Agreement shall conform to the permit requirements, the DAMP, the City's Local Implementation Plan (LIP), and the Model Maintenance Procedures and must be performed as described within all applicable Model Maintenance Procedures. LICENSEE and/or its Contractor shall fully understand the Model Maintenance Procedures applicable to activities that are being conducted under this License Agreement prior to conducting them and maintain copies of the Model Maintenance Procedures throughout the License Agreement duration. LICENSEE shall adhere to the Best Management Practices (BMP) described in the Water Pollution Control Program developed for the project, and install any other BMPs deemed necessary by the City of San Juan Capistrano. Evaluation of activities subject to DAMP requirements performed under this License Agreement will be conducted to verify compliance with DAMP requirements and may be required through self-evaluation of LICENSEE and/or its Contractor as determined by the City. All work within the CITY's property shall be reviewed and approved by the CITY's representative responsible for water quality issues. 5. Trail System As consideration for the rights given hereunder, Licensee agrees to modify project design plan, pursuant to City's request to accommodate one (1) twenty (20) foot wide bench, suitable for hiking, bicycling, and equestrian use. This bench shall be adjacent to the south abutment. 6. Permits: LICENSEE shall obtain and adhere to the amended permit requirements in order to perform work in areas under the jurisdiction of California Department of Fish & Game (DFG) and Army Corps of Engineers (ACOE). Permits to LICENSEE are attached and incorporated to this License Agreement as Exhibit "D", and conditions set in these permits are also a requirement of this License Agreement. • Department of Fish and Game • Army Corps of Engineers Arroyo Trabuco Conservation Mitigation Area LICENSEE has obtained the following permits for this project: 0 • Army Corps of Engineers Section 404 Nationwide Permit • California Department of Fish and Game Streambed Alteration Agreement • California Regional Water Quality Control Board Section 401 Water Quality Certification Copies of these documents have been provided to the City and are attached and incorporated herein to this Agreement as Exhibit "D". LICENSEE shall mitigate for all impacts on City -owned environmentally sensitive habitat areas in accordance with these agreements. An inspection of the area following completion of the bridge work shall be conducted. 7. Construction and Demolition Recycling: The City of San Juan Capistrano has established a Construction and Demolition (C&D) Waste Recycling Program pursuant to ordinance No. 887 to help in diverting C&D waste from landfills and also to comply with mandates of the California Integrated Waste Management Board (CIWMB). The City's diversion requirement is 50%, which means that certain projects are required to divert 50% of the total C&D waste tonnage at a project site away from landfills. Prior to starting any construction, LICENSEE shall obtain a permit and submit all necessary forms prior to obtaining the permit, as described in the ordinance, and at project completion, submit a summary report indicating how C&D were diverted. LICENSEE shall pay all related fees and post appropriate deposits. The City has a solid waste franchise agreement with CR&R. No other contractor can provide solid waste services in the City. LICENSEE shall adhere to the City's franchise agreement. 8. Conditions of Entry Prior to, and as a condition precedent to performance of work, the following conditions must be satisfied: 1. Compliance with Laws. LICENSEE shall, in all activities undertaken pursuant to this license agreement, comply, and shall cause its contractors, agents and employees to comply with all federal, state, and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. 2. Indemnification Except for CITY's sole negligence, LICENSEE hereby agrees to indemnify, defend, assume all liability for and hold harmless the CITY and its officers, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities, damages to property, or injuries to persons, which may be caused by LICENSEE's activities pursuant to work performed on CITY's property, or arising out of or in connection with such activities, whether such activities or performance thereof is by LICENSEE or anyone directly or indirectly employed under contract with LICENSEE, and whether such damage or claim 0 0 shall accrue or be discovered before or after the termination of this License Agreement. 3. Assumption of Risk. To the maximum extent allowed by law, LICENSEE assumes any and all risk of loss or damage to property (a) which belongs to CITY, or is in the care or custody of CITY; and (b) which is on the property, resulting from LICENSEE's operations pursuant to this agreement. LICENSEE's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the CITY's property, accident, fire or other casualty on the CITY's property, or electrical discharge, noise or vibration resulting from CITY's operations on or near the property. However, LICENSEE's assumption of risk shall not extend to damage to such property resulting from CITY'S (or CITY'S contractors' or representatives') gross negligence or willful misconduct. The provisions of this section shall survive the termination of this License Agreement. 9. Insurance. CITY shall accept LICENSEE's current self insurance/insurance programs for the purposes of this Agreement. 1. Comprehensive General Liabilitv LICENSEE shall require its contractor to maintain in full force and effect comprehensive general liability coverage, including premises operations, products/completed operations, broad form property damage and blanket contractual liability in the following minimum amounts: • $1,000,000 property damage; • $1,000,000 injury to one person/any occurrence/not limited to contractual period; and • $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 2. Comprehensive Automobile Liabilitv LICENSEE shall require its contractor to maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: • $500,000 property damage; • $500,000 injury to one person/any occurrence/not limited to contract; and • $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 3. Worker's Compensation If LICENSEE employs employees to perform services under this 0 0 License Agreement, LICENSEE shall obtain and maintain, during the life of the License Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. These policies shall not terminate, nor shall they be canceled nor the coverage reduced until after thirty (30) days' written notice is given to the City. LICENSEE shall require its contractor to provide an endorsement to City establishing that City has been legally added as an additional insured to the insurance policies required under this License Agreement. 10. Notification LICENSEE shall, in a timely manner, sufficiently notify and inform all affected residents and businesses of the construction work. All announcements, letters, media releases, postings, etc. shall be reviewed and approved by the CITY prior to distribution. 11. Traffic LICENSEE is required to obtain and adhere to requirements set forth in an Oversized Load Permit, a Haul Route Permit and an Encroachment Permit, as may be necessary to perform the described work. Additionally, LICENSEE is to provide the CITY with a list of vehicles that will be accessing the project site and at what frequency. The CITY reserves the right to limit and/or restrict vehicle access to the project site based on traffic conditions. All construction delivery vehicles shall avoid travel on City streets during the hours from 7:00 a.m. — 8:30 a.m. and 2:00 p.m. — 6:00 p.m., Monday through Friday. 12. Staging Area A staging area in the NWOS north of the Silverado Senior Living facility shall be used as lay -down yard and shall provide access to the work site. The large crane, which will be used for Phase II to erect the bridge girder, will be staged here as well. 13. Safety LICENSEE shall provide temporary construction fencing around the staging area, and LICENSEE shall adhere to safety requirements as directed by the CITY. These requirements shall consist of the following: • Provision of directional signs for construction traffic 14. Cultural Resource Protection LICENSEE shall create a temporary access ramp that will be located between the staging area and Trabuco Creek Bridge. This temporary ramp shall measure thirty (30) feet by one hundred one (101) feet and four and a half feet deep and 0 0 will encompass approximately 0.06 acres. LICENSEE shall lay a fabric barrier down on existing soil to protect cultural resources. Soil shall be imported in from an outside source to build a manmade ramp to the bridge. This ramp will be used throughout the duration of the project, and upon exit, imported soil shall be excavated down to the fabric barrier and removed. During any boring or excavation, LICENSEE shall retain an archeologist who is certified through the Register of Professional Archeologist (RPA) to monitor such activity for potential cultural resources. 15. Construction LICENSEE shall obtain, complete, and adhere to all requirements set forth in the following documents: • Construction and Demolition Permit (Section 7) • Waste Reduction and Recycling Plan (Section 7) To minimize traffic impacts and road safety impacts, LICENSEE shall deliver the bridge girders for Phase II to the project site by railcar. 16. Term This License Agreement shall continue in full force and effect until both phases of the project have been completed and all outstanding issues resolved to the satisfactory agreement of all parties or by December 31, 2006, whichever is the sooner. 17. Protection of Utilities The LICENSEE shall be responsible for ensuring the protection of existing utilities and facilities, being a City owned utility or other utility company's facility, and replace in kind if said utility or facility is damaged in any manner. This includes the protection and replacement in kind of all street improvements the LICENSEE may be utilizing for access to the project. 18. Revocation of License. City and LICENSEE shall have the right to terminate this License Agreement without cause by giving thirty (30) days' advance written notice of termination to the other party. In addition, this License Agreement may be terminated for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the License Agreement may be terminated subsequent to the ten (10) day cure period. 19. Liens. LICENSEE shall keep the Property free and clear of all mechanics, materialmen's and other liens resulting from Permitted Activities. 20. No Oral Modifications. 0 0 No alternatives or variations of this Agreement shall be valid or binding unless made in writing and signed by the parties hereto. 21. Entire Agreement This License Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. DATED this day of 2006 at San Juan Capistrano. ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: John R. Shaw, Attorney CITY OF SAN JUAN CAPISTRANO: David M. Swerdlin, Mayor ORANGE COUNTY TRANSPORTATION AUTHORITY an Stanley G. Phernambucq Executive Director of Construction & Engineering APPROVED AS TO FORM: By: Kennard R. Smart, Jr., General Counsel SOUTHERN CALIFORINIA REGIONAL RAIL AUTHORITY By. David Solow, Chief Executive Officer APPROVED AS TO FORM: Los Angeles County County Counsel Bv: Deputy County Counsel c4 IL \,to a a EXHIBIT "B" 0 0 M �f I R k 36 o '4 �w- o � w n � z EXHIBIT "C" 0 Exhibit D D1 Streambed Alteration Agreement No. 1600-2004-0060-R5 D2 Streambed Alteration Agreement No. R5-2004-0060, Amendment No. 1 D3 Department of the Army —Nationwide Permit NW14 and NW33 D4 California Regional Water Quality Control Board, Clean Water Act, Section 401 0 0 EXHIBIT "D" 1 E 171 0 0 11 • STATE OF CALIFORNIA -THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER Governor DEPARTMENT OF FISH AND GAME South Coast Region 4949 Viewrid9e Avenue a i Diego. California 92123 _ 8)467-4201 FAX (858) 467-4235.. ... . April 16, 2004 Mr. Chuck Sleffensmeier, P.E. Southern California Regional Rail Authority 275 West Hospitality Lane, Suite 300 San Bernardino, California 91.408 Dear Mr. Steftensmeiec Enclosed is Streambed Alteration Agreement No. 1600 -2004 -0060 -RS that authorizes work on the Southem California Regional Rail Bridge Project, impacting Arroyo'Frabuco Crock in Orange County. This action is authorized under Section 1600 of the Fish and Game Code and has been approved by the California Department of Fish and Game. Pursuant to the requirements of the California Environmental Quality Act (CEQA), the Department filed a Notice ol'Exemption (NOE) on the project on___. orE (L Under CEQA regulations, the project has a 35 -day statute of limitations of court c ta11 oges .1 the Department's approval under CEQA. The Department believes that the project fully meets the requirements of the Fish and Game Cade and CEQA. However, i f court challenges on the NOE are received during the 35 -day period, then an additional review or even modification of the project may be required. Kno comments are received during the 35 -day period, then any subsequent comments need not he responded to. This information is provided to you so that if you choose to undertake the project prior to the close of the 35 -day period, you do so with the knowledge that additional actions may be required based on the results of any court challenges that are tiled during that period. Please contact Donna Cobb at (858) 637-5510 if you have any questions regarding the Strcambed Alteration Agreement. Sincerely, C.F. RC F R Y�I{ Regional Manager Enclosure cc: Donna Cobb 0 0 CALIFORNIA DEPARTMENT OF FISH AND GAME 4949 Viewridge Avenue San Diego, California 92123 Notification No. 1600-2004-OQ6„0-R5 --Page -f o1_.8 - AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION THIS AGREEMENT, entered into between the State of California, Department of Fish and Game, hereinafter called the Department, and Southern California Regional Rail Authority (P.O.C. Mr. Chuck Steffensmeier), 275 West Hospitality Lane, Suite 300, San Bernardino, California 92408, Phone (909) 806-8006, Fax (909) 806-8099, hereinafter called the Operator, is as follows: WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator, on the 5`. day of February, 2004, notified the Department that they intend to divert or obstruct the natural flow of, or change the bed, channel, or bank of, or use material from the streambed(s) of, the following water(s): Arroyo Trabuco Creek_ trlbutary to San Juan Creek, Orange County, California, Section 36, l ownship 7S, Range 8W; USGS Map San Juan Capistrano 7.5; and WHEREAS, the Department has determined that such operations may substantially adversely affect those existing fish and wildlife resources within Arroyo Trabuco Creek, tributary to San Juan Creek, specifically identified as follows: Amphibians: Pacific slender salamander, western toad, and Pacific treefrog; Reptiles: southwestern pond turtle, western fence lizard, side -blotched lizard, coastal whiptail, California kingsnake, and gopher snake; Fishes: southern steelhead trout, and various other local fish; Birds. least Bell's vireo, southwestern willow flycatcher, yellow -breasted chat, white-tailed kite, red-tailed hawk, red -shouldered hawk, Cooper's hawk, American kestrel, mourning dove, wrens, California towhee, California quail, wrentit, trukey vulture, swallows, common raven, northern mockingbird, owls, killdeer, Anna's hummingbird, great blue heron, great egret, snowy egret, woodpeckers, swifts, swallows, western kingbird, wrens, vireos, grosbeaks, orioles, waxbills, California horned lark, finches, black phoebe, warblers, sparrows, numerous other songbirds and shorebirds; Mammals: longtail weasel, coyote, raccoon, California ground squirrel, Virginia opossum, brush rabbit, Audubon cottontail, Botta's pocket gopher, striped skunk, mice, and bats; Riparian vegetation which provides habitat for those species: willow, mulefat, cattails; and all other aquatic and wildlife resources, in the area. THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources during the Operator's work. The Operator hereby agrees to accept the following n.easures/cenddions as part cf the proposed work. If the Operator's work changes from that stated in the notification specified above, this Agreement is no longer valid and a new notification shall be submitted to the Department of Fish and Game. Failure to comply with the provisions of this Agreement and with other pertinent code sections, including but not limited to Fish and Game Code Sections 5650, 5652, 5937, and 5948, may result in prosecution. Nothing in this Agreement authorizes the Operator to trespass on any land or property, nor does it relieve the Operator of responsibility for compliance with applicable federal, state, or local laws or ordinances. A consummated Agreement does not constitute Department of Fish and Game endorsement of the proposed operation, or assure the Department's concurrence with permits required from other agencies. 0 9 Page 2 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 1.- The following-pfovisions constitute the -limit -of activities agreed to-andsesolved.by-this Agreement. - The signing of this Agreement does not imply that the Operator is precluded from doing other activities at the site. However, activities not specifically agreed to and resolved by this Agreement shall be subject to separate notification pursuant to Fish and Game Code Sections 1600 et seq. PROJECT DESCRIPTION: 2. The Operator proposes to alter the streambed and banks through the proposed rehabilitation of the Trabuco Creek Railroad Bridge located in the City of San Juan Capistrano. The major components of this rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of 8 -inch thick reinforced concrete encasement. The existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will be required within the streambed during construction of the 8 -inch encasement. Lifting equipment will be required within the streambed during placement of the bridge superstructure. 3. The agreed work includes activities associated with No. 2 above. The project area is located in the Arroyo Trabuco Cr ek. tributary to San Juan Creek, in Orange County. Specific work areas and mitigation measures are described onlin the plans and documents (Notification of Lake or Streambed Alteration, Metrolink Commuter Rail System: Hydraulic Analysis for Aliso Creek and Trabuco Creek, dated January 26, 2004, and Notice of Exemption, adopted September 13, 1991) submitted by the Operator, and shall be implemented as proposed unless directed differently by this agreement. IMPACTS: 4. The Operator shall not impact more than 0.037 acre of stream channel. Approximately 0.003 acre are permanent impacts, and approximately 0.034 acre are temporary impacts. MITIGATION: 5 The Operator shall mitigate 0.0112 acre of impacts to riparian habitat as outlined in the Proposed Mitigation Plan for the Trabuco Creek Fish Access Project, submitted by the Southern California Regional Rail Authority, dated August 5, 2003, and any subsequent revisions approved in writing by the Department. BIOLOGICAL SURVEYS AND TIME RESTRICTIONS: 6. The Operator shall not remove vegetation within the stream from March 15'" to July 31" to avoid impacts to nesting birds. However, work may occur during this time if a qualified biologist conducts a minimum of three days of surveys for nesting birds within seven days prior to the vegetation removal, and at least one survey must be within three days prior to the vegetation removal, to ensure no nesting birds shall be impacted by the project. These surveys shall include the areas within 200 feet of the edge of the proposed impact areas. Documentation of findings, including a negative finding must be submitted to the Department for review and concurrence. If no breeding/nesting birds are observed and concurrence has been received from the Department, site preparation and construction activities may begin. If breeding activities and/or an active bird nest is located and concurrence has been received from the Department, the breeding habitaUnesl site shall be fenced a minimum of 100 feet (200 feet for raptors) in all directions, and this area shall not be disturbed until the nest becomes inactive, the young have fledged, the young are no longer being fed by the parents, the young have left the area, and the young will no longer be impacted by the project. 7. Prior to construction activities, the area shall be surveyed for southwestern pond turtle by a qualified on-site biologist to ensure that no direct or indirect impacts shall occur to southwestern pond turtle as a result of the proposed project. If turtles are present, the specialist shall submit a Pond 0 Page 3 of 8 9 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 --- Turtle Mitigation Plan to, theDepartment,-and it shalf-include complete -avoidance -measures -for - Department review and approval, prior to project initiation. 8. Prior to work commencing at the bridge site, the Operator shall have a biologist survey the bridge structure for bats a minimum of 3 times, seven -days apart; unless a positive presence is determined then surveys can be ended. 9. If bats are believed to occupy a structure, a qualified bat biologist shall be consulted to determine the species and to develop measures to protect the bats to supplement the conditions contained in this agreement. If loss of significant bat roosting habitat occurs due to the implementation of the project, protection measures will include the installation of roosting structures below the deck, at Department approved locations. The Department shall be provided all supplemental protection measures for its review and written approval. 10 The Operator shall avoid work March 15`" through September 1" on bridges when it would disturb nesting swallows. If such a condition cannot be met, then prior to March 1" of each year, the Operator shall remove all existing nests which would be destroyed by the project. The Operator shall continue to discourage new nest building in places where they would be disturbed using methods approved by Caltrans and the Department. Nest removal and hazing must be repeated at least weekly until construction begins or until a swallow exclusion device is installed. The exclusion device must provide a space of four to six inches for the passage of snakes at the bottom edge. Nests must be discouraged throughout the term of the project. At no time shall occupied nests be destroyed as a result of project construction. 11 The Operator shall avoid work within the stream from October 15'" to June 15'" to avoid impacts to fish migration and smolt movement. 12. If work is performed within the stream channel during the winter storm period the Operator shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work activities shall involve the securing of the site, so as no materials may enter or be washed into the stream. The site shall be completely secured one (1) day prior to precipitation, unless prior written approval has been provided by the Department. During period of precipitation, no construction activities may occur; activities involving the preventing of materials from entering the stream or being washed downstream may be conducted. 1 S In me event [flat one ( i) inan of precipriaticn Is accumulatao w tilin the watershed, nc acuvltles shall occur on site for two weeks, or until the flows have receded and the moisture content of the soils has stabilized. VEGETATION REMOVAL AND HABITAT PROTECTION: 14. Disturbance, removal or trimming of vegetation for equipment access shall not exceed the limits approved by the Department. 15. Due to the presence of native riparian vegetation, all vegetation clearing shall be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shall be adequately flagged to prevent damage to adjacent riparian habitat, and to ensure that direct and indirect impacts to fish or wildlife, in particular birds and pond turtles, are avoided. 16. The work area shall be identified to all workers, as represented in plans. Native vegetation shall not be removed or intentionally damaged or beyond the designated work area. 17. Except where provided for within this agreement, the removal of soil and native vegetation from the streambed or streambanks is prohibited without prior written approval from the Department. 18. No direct or indirect impacts shall occur to any threatened or endangered species as a result of implementing the project or the project's mitigation activities. If any threatened or endangered species could be impacted by the work proposed, U.S. Fish and Wildlife Service 0 Page 4 of 8 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 ----�USFW S) protocol suweys shall be cordae -ted -prior to-irttptemenEingtlie prejeet, or the prejeet s - mitigation activities. If necessary, the Operator shall obtain the required state and federal threatened and endangered species permits. If there is no USFWS survey protocol for a particular listed species, the Department shall be consulted to determine appropriate survey procedures. The Department shall be provided copies of survey reports prior to project implementation, and prior to the implementation of mitigation activities. This agreement does not authorize the take of any federal or state threatened or endangered species. 19. If any sensitive species are observed in project surveys, the Operator shall cause a California Native Species Field Survey Form and survey map to be submitted to the Natural Diversity Database (NDDB) within five working days of the sightings, and prior to commencement of work. The form is available on-line at htto://www.dfg.ca,gov/whdab/natspec.odf, and instructions for completing the form are available at http://www.dfg.ca.gov/whdab/fsfinst odf. The form and survey map shall be sent to the Department of Fish and Game, California Natural Diversity Database, 1807 13th Street, Suite 202, Sacramento, CA 95814, with copies sent to the Department at 4949 Viewridge Avenue, San Diego, CA 92123, Attn: Streambed Alteration Program - SAA #1600-2004-0060-R5. 20 All vegetation shall be removed by hand or by hand -operated tools. 21. A qualified biological monitor shall be present and/or shall examine the site and mark native vegetation that is to be trimmed with flagging to ensure impacts are within the conditions of this Agreement. 22. No alteration of the streambed, bank or channel shall occur, except as otherwise permitted in this Agreement. The removal of soil, native vegetation and vegetative debris from the streambed or stream banks is prohibited, except as otherwise specified within this Agreement, however, the Operator may remove all human generated debris, garbage and trash. INSTREAM STRUCTURES AND FLOW DIVERSIONS 23. Installation of bridges, culverts, or other structures shall be such that water flow is not impaired Bottoms of temporary culverts shall be placed at stream channel grade and bottoms of permanent culverts shall be placed at or below stream channel grade. f­noorary Iv9R5 shq" h9 r-'T,cv?� pi-ICr I'? the winter storm period (first winter rain). 25. Any temporary dam or other artificial obstruction constructed shall only be built from materials such as clean gravel which will cause little or no siltation, and shall be approved by the Department prior to construction 26. When any dam or other artificial obstruction is being constructed, maintained, or placed in operation, sufficient water shall at all times be allowed to pass downstream to maintain aquatic life below the dam pursuant to Fish and Game Code section 5937. 27. An adequate fish/aquatic passage facility shall be incorporated into any barrier that obstructs fish/aquatic passage. 28. Plans for design of concrete sills and other features that could potentially impede fish/aquatic migrations shall be approved by the Department. 29. Permanent structures shall be designed, constructed and maintained such that they do not constitute a barrier to upstream or downstream movement of aquatic lite, or cause an avoidance reaction by fish that impedes their upstream or downstream movement. This includes but is not limited to the supply of water at an appropriate depth, temperature, and velocity to facilitate upstream and downstream fish migration. If any aspect of the proposed project results in a long term reduction in fish movement, the Operator shall be responsible for all future activities and expenditures necessary (as determined by the Department) to secure passage of fish across the structure. C] Page 5 of 8 • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 30. No equipment shall be operated in ponded or flowing areas. When work in a flowing stream is unavoidable, the entire stream flow shall be diverted around the work area by a barrier, temporary culvert, new channel, or other means approved by the Department. Location of the upstream and downstream diversion points shall be approved by the Department. Construction of the barrier and/or the new channel shall normally begin in the downstream area and continue in an upstream direction, and the flow shall be diverted only when construction of the diversion is completed. Channel bank or barrier construction shall be adequate to prevent seepage into or from the work area. Diversion berms shall be constructed of onsite alluvium of low silt content, inflatable dams, sand bags, or other approved materials Channel banks or barriers shall not be made of earth or other substances subject to erosion unless first enclosed by sheet piling, rock rip -rap, or other protective material. The enclosure and the supportive material shall be removed when the work is completed and removal shall normally proceed from downstream in an upstream direction. The Operator shall obtain all written approvals from the Department prior to initiation of construction activities. 31. Flow diversions shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all times that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 32. Precautions to minimize turbidity/siltation shall be taken into account during project planning and shall be installed prior to construction. This may require that the work site be isolated and that water be diverted around the work area by means of a barrier, temporary culvert, new channel, or other means approved by the Department. Precautions may also include placement of silt fencing, straw bales, sand bags, and/or the construction of silt catchment basins, so that silt or other deleterious materials are not allowed to pass to downstream reaches. The method used to prevent siltation shall be monitored and cleaned/repaired weekly. The placement of any structure or materials in the stream for this purpose, not included in the original project description, or Department approved water pollution/water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 33 Silty/turbid water from dewatering or other activities shall not be discharged into the stream. Such water shall be settled, filtered, or otherwise treated prior to discharge. The Operator's ability to n:i';i^lite tLITbI dIIf/dila J: ". ahL`: t. tllt. aublUc'. of pr3 censtru,lion ?'J:a implementation. 34. Upon Department determination that turbidity/siltation levels resulting from project related activities constitute a threat to aquatic life, activities associated with the turbidity/siltation., shall be halted until effective Department approved control devices are installed, or abatement procedures are initiated. 35. Preparation shall be made so that runoff from steep, erodible surfaces will be diverted into stable areas with little erosion potential. Frequent water checks shall be placed on dirt roads, cat tracks, or other work trails to control erosion. 36. Water containing mud, sill, or other pollutants from equipment washing or other activities, shall not be allowed to enter a lake or flowing stream or placed in locations that may be subjected to high storm flows. 37. If an off stream siltation pond/s is/are used to control sediment, pond/s shall be constructed in a location, or shall be designed, such that potential spills into the stream/lake during periods of high water levels/flow are precluded. 38. If silt catchment basinls is/are used, the basin/s shall be constructed across the stream immediately downstream of the project site. Catchment basins shall be constructed of materials which are free from mud and sill. Upon completion of the project, all basin materials along with the 0 0 Page 8 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 -trapped-sediments shall be removed from the stream. in such a manner that said.removal-shall not introduce sediment to the stream. 39 Silt settling basins shall be located away from the stream or lake to prevent discolored, silt bearing water from reaching the stream or lake during any flow regime. 40. Should a sill catchment basin be required, the following operational methods shall be employed: a. A silt catchment basin or basins (number and location to be determined by the Department) shall be constructed across the stream immediately below the project site. This catchment basin(s) shall be constructed of silt free gravel or other materials approved by the Department. b. Upon completion of the project and after all flowing water in the area is clear of turbidity, the gravel along with the trapped sediment shall be removed from the stream. The work area shall be secured from trespass when (as determined by the Department) fish or wildlife resources are vulnerable to damage from unsupervised public access. 41. Prior to commencing construction requiring diversion, the Operator shall submit to the Department for review and approval, the proposed water diversion plan for this project. The plan shall be consistent with the terms and conditions of this Agreement and the requirements of the U.S. Army Corps of Engineers and Regional Water Quality Control Board. Any terms and conditions in the final Agency approved water diversion, which are more restrictive than in this agreement shall be a part of this Agreement and shall be enforceable by the Department. Any changes in the original project description or Department approved water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 42. Pump intakes placed in stream/lake water shall be fitted with (1/8) inch or smaller mesh screens for January 1, through March 30, and (1/4) inch or small mesh screens thereafter. 43. Prior to passing water around the in -channel construction zone, the Operator shall have a certified fisheries biologist shall make visual observations to determine if there are any fish inhabiting the creek channel. If steelhead trout are observed in the in -channel construction zone, then a fish rescue shall be initiated. The fisheries biologist shall contact the Department to notify them of the need to initiate a fish rescue. Before any fish rescue activities begin, the reach would be isolated by installing nets across the flowing channel upstream of and at the downstream end of the construction zone. It is anticipated that fish would initially be captured using seines and/or fyke nets. Trapped fish would be released into a perennial portion of the creek downstream of the construction zone. The release site(s) would be approved by Department biologists and NMFS. 44. The Operator shall report all fish mortality immediately to the Department's Senior Fisheries Biologist, Mary Larson at (562) 342-7166. Additionally, all fish carcasses sha!I be collected and kept on ice or frozen for identification purposes by the Department. EQUIPMENT AND ACCESS: 45 Staging/storage areas for equipment and materials shall be located outside of the stream. 46. Access to the work site shall be via existing roads and access ramps. 47. No equipment maintenance shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas under any flow. 48. Vehicles shall not be driven or equipment operated in water covered portions of a stream or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be destroyed. POLLUTION AND LITTER: 49. All equipment shall be properly cleaned offsite prior to entering the stream channel. Page 7 of _�_ STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 All sediment and associated material -removed from -the -Weam-channel shag be -legally hauled and disposed of off-site. 51. Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or other petroleum products, or any other substances which could be hazardous to aquatic life, resulting from project related activities, shall be prevented from contaminating the soil and/or entering the waters of the state. These materials, placed within or where they may enter a stream/lake, by Operator or any - party working under contract, or with the permission of the Operator, shall be removed immediately. 52 No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings thereof, oil or petroleum products or other organic or earthen material from any construction, or associated activity of whatever nature shall be allowed to enter into or placed where it may be washed by rainfall or runoff into, waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any stream or lake. 53. The Operator shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the operator to ensure compliance. OTHER: 54. The Operator may request one extension of this Agreement, if the Operator requests the extension prior to the expiration of its original term. The Department shall grant the extension unless it determines that the Agreement requires modification because the measures contained in the agreement no longer protect the fish and wildlife resources that the activity may substantially adversely affect. In the event the Department makes that determination, the Department shall propose measures intended to protect those resources. If the Operator disagrees with the Department's determination that the Agreement requires modification to protect fish and wildlife resources or with the measures proposed by the Department, the disagreement shall be resolved pursuant to the procedures described in subdivision (b) of Section 1603. The Department may not extend an agreement for more than five years. The original Agreement shall remain in effect until the Department grants the extension request, or new measures are imposed to protect fish and wildlife resources by agreement or through the arbitration process, however, the original Agreement may not remain in effect for more than one year after its expiration date. If the Operator fails to submit a request to extend an agreement prior to its expiration, the Operator shall submit a new notification before commencing or continuing the activity covered by the Agreement. Any activities conducted under an expired agreement constitute a violation of Fish and Game Code Section 1600 et seq. The extension request and fees shall be submitted to the Department's Region 5 Office Streambed Team at 4949 Viewridge Avenue, San Ciego, California 92123. If the Operator fails to request the extension prior to the agreement's termination then the Operator shall submit a new notification with fees and required information to the Department. Any activities conducted under an expired agreement is a violation of Fish and Game Code Section 1600 et seq. 55 The Operator shall provide a copy of this Agreement to all contractors, subcontractors, and the Operator's project supervisors. Copies of the Agreement shall be readily available at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency upon demand. 56. The Department reserves the right to enter the project site at any time to ensure compliance with terms/conditions of this Agreement. 57. All provisions of this Agreement remain in force throughout the term of the Agreement. Any provisions of the Agreement may be amended or the Agreement may be terminated at any time provided such amendment and/or termination is agreed to in writing by both parties. Mutually approved amendments become part of the original Agreement and are subject to all previously negotiated provisions. 0 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 �u8. If -the Operator or any of the individuals mentioned above,- violate any of- the terms or cond4tions of this agreement, all work shall terminate immediately and shall not proceed until the Department has taken all of its legal actions 59, The Operator shall notify the Department, in writing, at least five (5) days prior to Initiation of construction (project) activities and at least five (5) days prior to completion of construction (project) activities. Notification shall be sent to the Department at 4949 Viewridge Avenue, San Diego, California 92123, Attn: Donna Cobb, ES. SAA#1600-2004-0060-R5. 60. It is understood the Department has entered into this Streambed Alteration Agreement for purposes of establishing protective features for fish and wildlife. The decision to proceed with the project is the sole responsibility of the Operator, and is not required by this agreement. It is further agreed all liability and/or incurred cost related to or arising out of the Operator's project and the fish and wildlife protective conditions of this agreement. remain the sole responsibility of the Operator. The Operator agrees to hold harmless the State of California and the Department of Fish and Game against any related claim made by any party or parties for personal injury or any other damages. 61. The Department reserves the right to suspend or cancel this Agreement for other reasons, including but not lirnited to the following a. The Department determines that the information provided by the Operator in support of the Notification/Agreement is incomplete or inaccurate; b. The Department obtains new information that was not known to it in preparing the terms and conditions of the Agreement; C. The project or prof act activities as described in the Notification/Agreement have changed, d. The conditions affecting fish and wildlife resources change or the Department determines that project activities will result in a substantial adverse effect on the environment. 62 Before any suspension or cancellation of the Agreement, the Department will notify the Operator in writing of the circumstances which the Department believes warrant suspension or cancellation. The Operator will have seven (7) working days from the date of receipt of this notification to respond in writing to the circumstances described in the Department's notification. During the seven (7) day response period, the Operator shall immediately cease any project activities which the Department specified in Its notification. The Operator shall not continue the specified activities until that time when the Department notifies the Operator in writing that adequate methods and/or measures have been identified and agreed upon to mitigate or eliminate the significant adverse effect. CONCURRENCE (Operator's name) (signature) date ype or print name and title) ' '51,1q,11.1 /:,/l Prepared by Donna l Cobb, Environmental Scientist CALIFORNIA DEPT. OF FISH AND GAME C. /b o y signature date C F RAYSBROOK, Regional Manager a 0 ,> 0 . State of California - The. Resources Agency ARNOW 5CHWAILZENECCM, Governor DEPARTMENT OF FISH AND GAME 4949 Vtewtldge Avenue - Sap Dlego. CA 92123 - (858) 467-4201 - - - - - June 7, 2005 )&, Chuck StWensmeiey. P.E. Southern California Regional Rail Authority 275 West �lospitality Lane, Suite 300 San Bernardino, California 92409 8v4ject: Streambed-Altecatioi. Agreement No. P3.2064-0060— Southern California Ronal Rail Authority Project Amendment No. l Dear Mr. Steftsmeier: The California Department ofl5sh and Gaute(Department) bas reviewed the request submitted by W Lint1soy M=dR of Chamber ('croup Inc., dated March 3, 2005, to amend Streambed Aitmatiori Agreement Notification No. 10-2D04.0061% The ;Agreement allows for the Southern CfilifomiaRegipnW hail Authority Project to impact A.iSoyo TUN= Creek, tributary to San Juan Creek in Grange County. Pursuant to Fish and Game Code Section 1600 at seg, this letter, when cotmtersigned, amends our agreement as follows: Amend construction ternnuafion date (to read); • December 31, 2006. EXHIBIT "D" 2 I Amend Condition A (to read): • The Operator sbaU not. impact marc than. 11.517 acre of stream ebatiml, of which i itpproidmately 0.003 acre are permanent impacts, and apprmdntately 0,514:=p are temporary impacts. This increased temporary impact nrea of0.4g.wms includes atotal of 0,27 we of southern willow, wrub.vegetation as shown on Trabnco Creek Bridge Temporary Impact Area:rnap dated February 4 2005. Amend ilgrmmept by adding Condition'Sa (to read): •- The C'iptrator shall mitigetp 0.483 acre ofpermanem.and temporaty.impacts to stream and riparian habitats. Southern willow scrub (0.27 acres) shall be mitigated at a cbmpensation to impact ratio 0£3:1 and the remainder of #ho impacts{0,273 acres) shall be miaganed ata compensation to impact ratio vi l:T • liTiuligation may include contninrting to a grata reed (Ar7n:do don=) removal program approved by the Department. The Operator shall provide a mitigation/teportirtg ptan to the'Depmimem witWn30-days df signing rias amendment. Amend Condition 15 (to read): • Thre to the presence of native riparian vegetation, all vegetation clearing shall be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shell be adegrtately Ragged to prevent damage to adjacent riparian babitan and to ensure that direct and indirectimp" to fish or v ddlife, in particular birds and,pond'turtles, are avoided. filaggutg shall be kept in place do4w construction, and any flagging material that erten the stream wilt be removed as soon ac possible. The Operator will provide the Department photo documentation of the flagged perimeter prior to conunencement of work. Amend'Cotdition 55 (to read): • The Operator shall provide a copy of this Agreement and all amendments and e4easions to all-'*htraetors, subcontractors, and the (}penetoi's: project &apetvisots; Copies ufthe Agreetnent, amendments and extensions ahall be readily availabte at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency irpon demand: Be advised that all conditions of the original Agreement No. R5-2002-0060 remains is effect throughout the term ofthe agreement. A copy of said agreement AND TWS AMENDMENT LETTEk must be kept on site and be shown upon request to 0 0 Naeem 3idddiq i '.. - Environmental Scientist Habitat Conservation Platminj$ Region 5 Please make a copy of this letter, sign both copies; and retum.one ropy . to the California Department of Fislr acrd Game (Depattuietit), 5out4 Coast Region at the above address, and keep the ofher copy for youruse, CONCURRENCE: Southern {.''aliforaia iigsional Rail Road Authority cc: Ms, ;Lindsay 1vlessett, Chamber Droop Inc. 0 0 STATE OF CALIFORNIA -THE RESOURCES AGENCY ARNOLO SCHWARZENEGGER Gavemor DEPARTMENT OF FISH AND GAME South Const Region 4949 Viewridge Avenue a Diego, California 92123 8)467,4201 FAX (858) 467-4235 April 16, 2004 Mr. Chuck Steffensmeier, P.E. Southern California Regional Rail Authority 275 West Hospitality Lane, Suite 300 San Bernardino, California 92408 Dcar Mr. Steffensmeier: Enclosed is Streambed Alteration Agreement No. 1600-2004-0060-R5 that authorizes work on the Southern California Regional Rail Bridge Project, impacting Arroyo'l'rabuco Creek in Orange County. This action is authorized under Section 1600 of the Fish and Game Code and has been approved by the California Department of Fish and Game. Pursuant to the requirements of the Cali fomiaEnvironmenta Quality Act (CEQA), the Department filed a Notice ol'Exemption (NOE) on the project on_otf 1L�0_ Under CEQA regulations, the project has a 35 -day statute of limitations of court cfalicnges of the Department's approval under CEQA. The Department believes that the project fully meets the requirements of the Fish and Game Codc and CEQA, However, if court challenges on the NOL'are received during the 35 -day period, then an additional review or even modification ofthe project maybe required. If no comments are received during the 35 -day period, then any subsequent comments need not be responded to. This information is provided to you so that if you choose to undertake the project prior to the close of the 35 -day period, you do so with the knowledge that additional actions may be required based on the results of any court challenges that are filed during that period. Please contact Donna Cobb at (858) 637-5510 if you have any questions regarding the Streambed Alteration Agreement. Sincerely, C.F. RVYSBROOK Regional Manager Fnc losu rc cc: Donna Cobb 0 0 CALIFORNIA DEPARTMENT OF FISH AND GAME 4949 Viewridge Avenue San Diego, California 92123 Notification No. 1600-2004-0060-R5 _P.a9e AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION THIS AGREEMENT, entered into between the State of California, Department of Fish and Game, hereinafter called the Department, and Southern California Regional Rail Authority (P.O.C. Mr. Chuck Steffensmeier), 275 West Hospitality Lane, Suite 300, San Bernardino, California 92408; Phone (909) 806-8006, Fax (909) 806-8099, hereinafter called the Operator, is as follows: WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator, on the 51" day of Fe rua , 2004, notified the Department that they intend to divert or obstruct the natural flow of, or change the bed, channel, or bank of, or use material from the streambed(s) of, the following water(s): Arroyo Trabuco Creek, tributary to San Juan Creek, Orange County, California, Section 36, l ownship 7S, Range BW; USGS Map San Juan Capistrano 7.5; and WHEREAS, the Department has determined that such operations may substantially adversely affect those existing fish and wildlife resources within Arroyo Trabuco Creek, trlbutary to San Juan Creek, specifically identified as follows: Amphibians: Pacific slender salamander, western toad, and Pacific treefrog; Reptiles: southwestern pond turtle, western fence lizard, side -blotched lizard, coastal whiptail, California kingsnake, and gopher snake; Fishes: southern steelhead trout, and various other local fish; Birds: least Bell's vireo, southwestern willow flycatcher, yellow -breasted chat, white-tailed kite, red-tailed hawk, red -shouldered hawk, Cooper's hawk, American kestrel, mourning dove, wrens, California towhee, California quail, wrentit, trukey vulture, swallows, common raven, northern mockingbird, owls, killdeer, Anna's hummingbird, great blue heron, great egret, snowy egret, woodpeckers, swifts, swallows, western kingbird, wrens, vireos, grosbeaks, orioles, waxbills, California horned lark, finches, black phoebe, warblers, sparrows, numerous other songbirds and shorebirds; Mammals: longtail weasel, coyote, raccoon, California ground squirrel, Virginia opossum, brush rabbit, Audubon cottontail, Botta's pocket gopher, striped skunk, mice, and bats; Riparian vegetation which provides habitat for those species: willow, mulefat, cattails; and all other aquatic and wildlife resources, in the area. THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources during the Operator's work. The Operator hereby agrees to accept the following measures/conditions as part of the proposed work. If the Operator's work changes from that stated in the notification specified above, this Agreement is no longer valid and a new notification shall be submitted to the Department of Fish and Game. Failure to comply with the provisions of this Agreement and with other pertinent code sections, including but not limited to Fish and Game Code Sections 5650, 5652, 5937, and 5948, may result in prosecution. Nothing in this Agreement authorizes the Operator to trespass on any land or property, nor does it relieve the Operator of responsibility for compliance with applicable federal, state, or local laws or ordinances. A consummated Agreement does not constitute Department of Fish and Game endorsement of the proposed operation, or assure the Department's concurrence with permits required from other agencies. Page 2 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 1 __.The following -provisions. constitute the kmit-ofaciivities agreed to- and -resolved -by -this Agreement- The signing of this Agreement does not imply that the Operator is precluded from doing other activities at the site. However, activities not specifically agreed to and resolved by this Agreement shall be subject to separate notification pursuant to Fish and Game Code Sections 1600 of seq. PROJECT DESCRIPTION: 2. The Operator proposes to alter the streambed and banks through the proposed rehabilitation of the Trabuco Creek Railroad Bridge located in the City of San Juan Capistrano. The major components of this rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of 8 -inch thick reinforced concrete encasement. The existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will be required within the streambed during construction of the 8•incn encasement. Lifting equipment will be required within the streambed during placement of the bridge superstructure. 3. The agreed work includes activities associated with No. 2 above. The project area is located in the Arroyo Trabuco Creek, tributary to San Juan Creek, in Orange County. Specific work areas and mitigation measures are described on/in the plans and documents (Notification of Lake or Streambed Alteration, Metrolink Commuter Rail System: Hydraulic Analysis for Aliso Creek and Trabuco Creek, dated January 26, 2004, and Notice of Exemption, adopted September 13, 1991) submitted by the Operator, and shall be implemented as proposed unless directed differently by this agreement. IMPACTS: 4. The Operator shall not impact more than 0.037 acre of stream channel. Approximately 0.003 acre are permanent impacts, and approximately 0.034 acre are temporary impacts. MITIGATION: 5. The Operator shall mitigate 0.0112 acre of impacts to riparian habitat as outlined in the Proposed Mitigation Plan for the Trabuco Creek Fish Access Project, submitted by the Southern California Regional Rail Authority, dated August 5, 2003; and any subsequent revisions approved in writing by the Department. BIOLOGICAL SURVEYS AND TIME RESTRICTIONS 6. The Operator shall not remove vegetation within the stream from March 15' to July 31" to avoid impacts to nesting birds. However, work may occur during this time if a qualified biologist conducts a minimum of three days of surveys for nesting birds within seven days prior to the vegetation removal, and at least one survey must be within three days prior to the vegetation removal, to ensure no nesting birds shall be impacted by the project. These surveys shall include the areas within 200 feet of the edge of the proposed impact areas. Documentation of findings, including a negative finding must be submitted to the Department for review and concurrence. If no breeding/nesting birds are observed and concurrence has been received from the Department, site preparation and construction activities may begin. If breeding activities and/or an active bird nest is located and concurrence has been received from the Department, the breeding habitat/nest site shall be fenced a minimum of 100 feet (200 feet for raptors) in all directions, and this area shall not be disturbed until the nest becomes inactive, the young have fledged, the young are no longer being fed by the parents, the young have left the area, and the young will no longer be impacted by the project. 7. Prior to construction activities, the area shall be surveyed for southwestern pond turtle by a qualified on-site biologist to ensure that no direct or indirect impacts shall occur to southwestern pond turtle as a result of the proposed project. If turtles are present, the specialist shall submit a Pond 0 Page 3 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 Turtte Mitigation Plan to the -Department and it-shaiHnelude complete -avoidance -measures -for- - - Department review and approval, prior to project initiation. 8. Prior to work commencing at the bridge site, the Operator shall have a biologist survey the bridge structure for bats a minimum of 3 times, seven -days apart; unless a positive presence is determined then surveys can be ended. 9. If bats are believed to occupy a structure, a qualified bat biologist shall be consulted to determine the species and to develop measures to protect the bats to supplement the conditions contained in this agreement. If loss of significant bat roosting habitat occurs due to the implementation of the project, protection measures will include the installation of roosting structures below the deck, at Department approved locations. The Department shall be provided all supplemental protection measures for its review and written approval. 10. The Operator shall avoid work March 15" through September 1" on bridges when it would disturb nesting swallows. If such a condition cannot be met, then prior to March 1" of each year, the Operator shall remove all existing nests which would be destroyed by the project. The Operator shall continue to discourage new nest building in places where they would be disturbed using methods approved by Caltrans and the Department. Nest removal and hazing must be repeated at least weekly until construction begins or until a swallow exclusion device is installed. The exclusion device must provide a space of four to six inches for the passage of snakes at the bottom edge. Nests must be discouraged throughout the term of the project. At no time shall occupied nests be destroyed as a result of project construction. 11 The Operator shall avoid work within the stream from October 15'" to June 15" to avoid impacts to fish migration and smolt movement. 12. If work is performed within the stream channel during the winter storm period the Operator shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work activities shall involve the securing of the site, so as no materials may enter or be washed into the stream. The site shall be completely secured one (1) day prior to precipitation, unless prior written approval has been provided by the Department. During period of precipitation, no construction activities may occur; activities involving the preventing of materials from entering the stream or being washed downstream may be conducted. 13. In me event inat one ('i) incl) of precipitation is accumulatao wltnlr, the watershed, no activities shall occur on site for two weeks, or until the flows have receded and the moisture content of the soils has stabilized. VEGETATION REMOVAL AND HABITAT PROTECTION: 14. Disturbance, removal or trimming of vegetation for equipment access shall not exceed the limits approved by the Department. 15. Due to the presence of native riparian vegetation, all vegetation clearing shall be conducted under the supervision of a qualified biological monitor, and the perimeter of the work site shall be adequately flagged to prevent damage to adjacent riparian habitat, and to ensure that direct and indirect impacts to fish or wildlife, in particular birds and pond turtles, are avoided. 16. The work area shall be identified to all workers, as represented in plans. Native vegetation shall not be removed or intentionally damaged or beyond the designated work area. 17. Except where provided for within this agreement, the removal of soil and native vegetation from the streambed or streambanks is prohibited without prior written approval from the Department. 18. No direct or indirect impacts shall occur to any threatened or endangered species as a result of implementing the project or the protect's mitigation activities. If any threatened or endangered species could be impacted by the work proposed, U.S. Fish and Wildlife Service 0 0 Page 4 of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 t S)pretocel-sueys-&hai eenddcted-ryrier to-"erxtent+ng-the-prejeet, or-theprajeetis—_.. . mitigation activities. If necessary, the Operator shall obtain the required state and federal threatened and endangered species permits. If there is no USFWS survey protocol for a particular listed species, the Department shall be consulted to determine appropriate survey procedures. The Department shall be provided copies of survey reports prior to project implementation, and prior to the implementation of mitigation activities. This agreement does not authorize the take of any federal or slate threatened or endangered species. 19. If any sensitive species are observed in project surveys, the Operator shall cause a California Native Species Field Survey Form and survey map to be submitted to the Natural Diversity Database (NDDB) within five working days of the sightings, and prior to commencement of work. The form is available on-line at htto://www.dfa.ca.aovtwhdab/natspecpdf, and instructions for completing the form are available at htto:l/www.dfq.ca.gov/whdab/fsfinsl.pdf. The form and survey map shall be sent to the Department of Fish and Game, California Natural Diversity Database, 1807 13th Street, Suite 202, Sacramento, CA 95814, with copies sent to the Department at 4949 Viewridge Avenue, San Diego, CA 9212.3, Attn: Streambed Alteration Program - SAA #1600-2004-0060-R5. 20. All vegetation shall be removed by hand or by hand -operated tools. 21. A qualified biological monitor shall be present and/or shall examine the site and mark native vegetation that is to be trimmed with flagging to ensure impacts are within the conditions of this Agreement. 22. No alteration of the streambed, bank or channel shall occur, except as otherwise permitted in this Agreement. The removal of soil, native vegetation and vegetative debris from the streambed or stream banks is prohibited, except as otherwise specified within this Agreement, however, the Operator may remove all human generated debris, garbage and trash. INSTREAM STRUCTURES AND FLOW DIVERSIONS: 23 Installation of bridges, culverts, or other structures shall be such that water flow is not impaired Bottoms of temporary culverts shall be placed at stream channel grade and bottoms of permanent culverts shall be placed at or below stream channel grade. v+ ^" -moorari ^,Prorts shall h^ ^^ cv,,,d prier to the w;nter storm period (first winter rain). 25. Any temporary dam or other artificial obstruction constructed shall only be built from materials such as clean gravel which will cause little or no siltation, and shall be approved by the Department prior to construction. 26. When any dam or other artificial obstruction is being constructed, maintained, or placed in operation, sufficient water shall at all times be allowed to pass downstream to maintain aquatic life below the dam pursuant to Fish and Game Code section 5937. 27. An adequate fish/aquatic passage facility shall be incorporated into any barrier that obstructs fish/aquatic passage. 28. Plans for design of concrete sills and other features that could potentially impede fish/aquatic migrations shall be approved by the Department. 29. Permanent structures shall be designed, constructed and maintained such that they do not constitute a barrier to upstream or downstream movement of aquatic life, or cause an avoidance reaction by fish that impedes their upstream or downstream movement. This includes but is not limited to the supply of water at an appropriate depth, temperature, and velocity to facilitate upstream and downstream fish migration. If any aspect of the proposed project results in a long term reduction in fish movement, the Operator shall be responsible for all future activities and expenditures necessary (as determined by the Department) to secure passage of fish across the structure. 0 0 Page - of 8 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 30. No equipment shall be operated in ponded or flowing areas When work in a flowing stream is unavoidable, the entire stream flow shall be diverted around the work area by a barrier, temporary culvert, new channel, or other means approved by the Department. Location of the upstream and downstream diversion points shall be approved by the Department. Construction of the barrier and/or the new channel shall normally begin in the downstream area and continue in an upstream direction, and the flow shall be diverted only when construction of the diversion is completed. Channel bank or barrier construction shall be adequate to prevent seepage into or from the work area. Diversion berms shall be constructed of onsite alluvium of low silt content, inflatable dams, sand bags, or other approved materials. Channel banks or barriers shall not be made of earth or other substances subject to erosion unless first enclosed by sheet piling, rock rip -rap, or other protective material. The enclosure and the supportive material shall be removed when the work is completed and removal shall normally proceed from downstream in an upstream direction. The Operator shall obtain all written approvals from the Department prior to initiation of construction activities. 31. Flow diversions shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all times that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 32. Precautions to minimize turbidity/siltation shall be taken into account during project planning and shall be installed prior to construction. This may require that the work site be isolated and that water be diverted around the work area by means of a barrier, temporary culvert, new channel, or other means approved by the Department. Precautions may also include placement of silt fencing, straw bales, sand bags, and/or the construction of silt catchment basins, so that silt or other deleterious materials are not allowed to pass to downstream reaches. The method used to prevent siltation shall be monitored and cleaned/repaired weekly. The placement of any structure or materials in the stream for this purpose, not included in the original project description, or Department approved water pollution/water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 33. Silty/turbid water from dewatering or other activities shall not be discharged into the stream. Such water shall be settled, filtered, or otherwise treated prior to discharge. The Operator's ability to minlm¢e shall t� the subject of pra construction planring 1r )'Jra implementation. 34. Upon Department determination that turbidity/siltation levels resulting from project related activities constitute a threat to aquatic life, activities associated with the turbidity/siltation., shall be halted until effective Department approved control devices are installed, or abatement procedures are initiated. 35. Preparation shall be made so that runoff from steep, erodible surfaces will be diverted into stable areas with little erosion potential. Frequent water checks shall be placed on dirt roads, cat tracks, or other work trails to control erosion. 36. Water containing mud, silt, or other pollutants from equipment washing or other activities, shall not be allowed to enter a lake or flowing stream or placed in locations that may be subjected to high storm flows. 37. If an off stream siltation pond/s is/are used to control sediment, pond/s shall be constructed in a location, or shall be designed, such that potential spills into the stream/lake during periods of high water levels/flow are precluded. 38. If silt catchment basin/s is/are used, the basin/s shall be constructed across the stream immediately downstream of the project site. Catchment basins shall be constructed of materials which are free from mud and silt. Upon completion of the project, all basin materials along with the 0 Page 6 of 8 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 trapped sediments shall be ramoved-from.the.stream-in_such a manner-that<said femovalshalt riot -. -- -- - --- introduce sediment to the stream. 39. Silt settling basins shall be located away from the stream or lake to prevent discolored, silt bearing water from reaching the stream or lake during any flow regime. 40. Should a silt catchment basin be required, the following operational methods shall be employed: a. A silt catchment basin or basins (number and location to be determined by the Department) shall be constructed across the stream immediately below the project site. This catchment basin(s) shall be constructed of silt free gravel or other materials approved by the Department. b. Upon completion of the project and after all flowing water in the area is clear of turbidity, the gravel along with the trapped sediment shall be removed from the stream. The work area shall be secured from trespass when (as determined by the Department) fish or wildlife resources are vulnerable to damage from unsupervised public access. 41. Prior to commencing construction requiring diversion, the Operator shall submit to the Department for review and approval, the proposed water diversion plan for this project. The plan shall be consistent with the terms and conditions of this Agreement and the requirements of the U.S. Army Corps of Engineers and Regional Water Quality Control Board. Any terms and conditions in the final Agency approved water diversion, which are more restrictive than in this agreement shall be a part of this Agreement and shall be enforceable by the Department. Any changes in the original project description or Department approved water diversion plan shall be coordinated with the Department. Coordination shall include the negotiation of additional Agreement provisions. 42. Pump intakes placed in streamflake water shall be fitted with (118) inch or smaller mesh screens for January 1, through March 30, and (1/4) inch or small mesh screens thereafter. 43. Prior to passing water around the in -channel construction zone, the Operator shall have a certified fisheries biologist shall make visual observations to determine if there are any fish inhabiting the creek channel. If steelhead trout are observed in the in -channel construction zone, then a fish rescue shall be initiated. The fisheries biologist shall contact the Department to notify them of the need to Initiate a fish rescue. Before any fish rescue activities begin, the reach would be isolated by installing nets across the flowing channel upstream of and at the downstream end of the construction zone. It is anticipated that fish would initially be captured using seines and/or Tyke nets. Trapped fish would be released into a perennial portion of the creek downstream of the construction zone. The release site(s) would be approved by Department biologists and NMFS. 44. The Operator shall report all fish mortality immediately to the Department's Senior Fisheries Biologist, Mary Larson at (562) 342-7186. Additionally, all fish carcasses sha!I be collected and kept on ice or frozen for identification purposes by the Department. EQUIPMENT AND ACCESS: 45. Staging/storage areas for equipment and materials shall be located outside of the stream. 46. Access to the work site shall be via existing roads and access ramps. 47. No equipment maintenance shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas under any flow. 48. Vehicles shall not be driven or equipment operated in water covered portions of a stream or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be destroyed. POLLUTION AND LITTER: 49. All equipment shall be properly cleaned offsite prior to entering the stream channel. 0 Page 7 of Q 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 ----rO. -Alt sediment -and associated material removed from the stream channel shelf be legally hauled and disposed of off-site. 51. Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or other petroleum products, or any other substances which could be hazardous to aquatic life, resulting from project related activities, shall be prevented from contaminating the soil and/or entering the waters of the state. These materials, placed within or where they may enter a stream/lake, by Operator or any party working under contract, or with the permission of the Operator, shall be removed immediately. 52. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings thereof, oil or petroleum products or other organic or earthen material from any construction, or associated activity of whatever nature shall be allowed to enter into or placed where it may be washed by rainfall or runoff into, waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any stream or lake. 53. The Operator shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the operator to ensure compliance. OTHER: 54. The Operator may request one extension of this Agreement, if the Operator requests the extension prior to the expiration of its original term. The Department shall grant the extension unless it determines that the Agreement requires modification because the measures contained in the agreement no longer protect the fish and wildlife resources that the activity may substantially adversely affect. In the event the Department makes that determination, the Department shall propose measures intended to protect those resources. If the Operator disagrees with the Department's determination that the Agreement requires modification to protect fish and wildlife resources or with the measures proposed by the Department, the disagreement shall be resolved pursuant to the procedures described in subdivision (b) of Section 1603. The Department may not extend an agreement for more than five years. The original Agreement shall remain in effect until the Department grants the extension request, or new measures are imposed to protect fish and wildlife resources by agreement or through the arbitration process, however, the original Agreement may not remain in effect for more than one year after its expiration date. If the Operator fails to submit a request to extend an agreement prior to its expiration, the Operator shall submit a new notification before commencing or continuing the activity covered by the Agreement. Any activities conducted under an expired agreement constitute a violation of Fish and Game Code Section 1600 et seq. The extension request and fees shall be submitted to the Department's Region 5 Office Streambed Team at 4949 Viewridge Avenue, San Diego, California 92123. If the Operator fails to request the extension prior to the agreement's termination then the Operator shall submit a new notification with fees and required information to the Department. Any activities conducted under an expired agreement is a violation of Fish and Game Code Section 1600 et seq. 55. The Operator shall provide a copy of this Agreement to all contractors, subcontractors, and the Operator's project supervisors. Copies of the Agreement shall be readily available at work sites at all times during periods of active work and must be presented to any Department personnel, or personnel from another agency upon demand. 56. The Department reserves the right to enter the project site at any time to ensure compliance with terms/conditions of this Agreement. 57. Alt provisions of this Agreement remain in force throughout the term of the Agreement. Any provisions of the Agreement may be amended or the Agreement may be terminated at any time provided such amendment and/or termination Is agreed to in writing by both parties. Mutually approved amendments become part of the original Agreement and are subject to all previously negotiated provisions, 10 Page 8 of 8 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0060-R5 �8, If-the-Operstor or -any -of the individuals mentioned above, vkgete any-of-the-ternts-or eertditions _ of this agreement, all work shall terminate immediately and shall not proceed until the Department has taken all of its legal actions. 59. The Operator shall notify the Department, in writing, at least five (5) days prior to Initiation of construction (project) activities and at least five (5) days prior to completion of construction (project) activities. Notification shall be sent to the Department at 4949 Viewridge Avenue, San Diego, California 92123, Attn Donna Cobb, ES. SAA#1600-2004-0060-R5. 60. It is understood the Department has entered into this Streambed Alteration Agreement for purposes of establishing protective features for fish and wildlife. The decision to proceed with the project is the sole responsibility of the Operator, and is not required by this agreement. It Is further agreed all liability and/or incurred cost related to or arising out of the Operator's project and the fish and wildlife protective conditions of this agreement. remain the sole responsibility of the Operator. The Operator agrees to hold harmless the State of California and the Department of Fish and Game against any related claim made by any party or parties for personal injury or any other damages. 61. The Department reserves the right to suspend or cancel this Agreement for other reasons, including but not limited to the following a. The Department determines that the information provided by the Operator In support of the Notification/Agreement is incomplete or inaccurate; b. The Department obtains new information that was not known to it in preparing the terms and conditions of the Agreement; C. The project or project activities as described in the Notification/Agreement have changed; d. The conditions affecting fish and wildlife resources change or the Department determines that project activities will result in a substantial adverse effect on the environment. 62. Before any suspension or cancellation of the Agreement, the Department will notify the Operator in writing of the circumstances which the Department believes warrant suspension or cancellation. The Operator will have seven (7) working days from the date of receipt of this notification to respond in writing to the circumstances described in the Department's notification. During the seven (7) day response period, the Operator shall immediately cease any project activities which the Department specified in its notification. The Operator shall not continue the specified activities until that time when the Department notifies the Operator in writing that adequate methods and/or measures have been identified and agreed upon to mitigate or eliminate the significant adverse effect. CONCURRENCE (Operator's name) (signature date ype or print name and title) c Prepared by. Donna L Cobb, Environmental Scientist CALIFORNIA DEPT. OF FISH AND GAME (signature)() (del C F RAYSBROOK Regional Manager 0 REPLY TO ATTENTION OF Office of the Chief Regulatory Branch DEPARTMENT OF THE ARMY LOS ANGELES DISTRICT, CORPS OF ENGINEERS P.O BOX 532711 LOS ANGELES, CALIFORNIA 90053-2325 May 11, 2004 • DEPARTMENT OF THE ARMY NATIONWIDE PERMIT AUTHORIZATION Orange County Transportation Authority Attention: Min Saysay 550 South Main street, 14184 Orange, CA 92683-1584 Dear Mr. Saysay: This is in reply to your letter (No. 200400653 -DPS) dated January 28, 2004, for Department of the Army authorization to permanently discharge up to 0.0048 acre of fill (as well as 0.0064 acre of temporary fill), associated with construction of the Aliso Creek Bridge, and up to 0.0028 acre of fill (as well as 0.0335 acre of temporary fill), associated with construction of the Trabuco Creek Bridge, within the cities of Lake forest and San Juan Capistrano, respectively, in Orange County, California. Both bridge projects are part of the Santa Ana 2nd Main Track project. The Corps of Engineers has determined that your proposed activity complies with the terms and conditions of nationwide permit NW14 and NW33 as described in enclosure 1. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissued, revoked, or expires before that time. Presently, all nationwide permits are scheduled to expire on March 18, 2007. It is incumbent upon you to remain informed of changes to the nationwide permits. We will issue a public notice announcing the changes when they occur. Furthermore, if you commence or are under contract to commence this activity before the date the nationwide permit is modified or revoked, you will have twelve months from the date of the modification or revocation to complete the activity under the present terns and conditions of the nationwide permit. A nationwide permit does not grant any property rights or exclusive privileges. Also, it does not authorize any injury to the property or rights of others or authorize interference with any existing or proposed Federal project. Furthermore, it does not obviate the need to obtain other Federal, state, or local authorizations required by taw. EXHIBIT "D" 3 Thank you for participating in our contact Daniel P. Swenson of my staff at I am forwarding a copy of this letter to: Mr. Chris Coffman, 515 S. Flower Street, 9" b Enclosure -z- 0 If you have any questions, please nmuter Rail Engineering Team, Attention: Los Angeles, California 90071. Sincerely, Mark Durham Chief, South Coast Section Regulatory Branch -3 - LOS ANGELES DISTRICT U.S. ARMY CORPS OF ENGINEERS CERTIFICATION OF COMPLIANCE WITH DEPARTMENT OF THE ARMY NATIONWIDE PERMIT Permit Number. 200400653 -DPS Name of Permittee: Orange CountyTransportatinn Authority, Mitt Saysay Date of Issuance: April 28, 2004 Upon completion of the activity authorized by this permit and any mitigation required by the permit, sign this certification and return it to the following address: U.S Army Corps of Engineers Regulatory Branch ATTN: CESPL-CO-R-200400653-DPS P.O. Box 532711 Los Angeles, California 90053-2325 Please note that your permitted activity is subject to a compliance inspection by an Army Corps of Engineers representative If you fail to comply with this nationwide permit you may be subject to permit suspension, modification, or revocation procedures as contained in 33 CFR 330.5 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of the said permit, and required mitigation was completed in accordance with the permit conclition(s). Signature of Permittee Date 0 TIONWIDE PERMIT NUMBER NW14, NW33, NW14 and NW33 TERMS AND CONDITIONS 1. Nationwide Permit NW14 and NW33 Terms: Your activity is authorized under NW14 and NW33 subject to the following terms: 14. Linear Transportation Crossings. Activities required for the construction, expansion, modification, or improvement of linear transportation crossings (e.g., highways, railways, trails, and airport runways and taxiways) in waters of the United States, including wetlands, provided the activity meets the following criteria: a. This N WP is subject to the following acreage and linear limits: (1) For linear transportation-pin;,_ts in non -tidal waters, excluding non -tidal wetlands adjacent to tidal waters, provided the discharge does not cause the loss of greater than 1/2 acre of waters of the United States; (2) For linear tramsporfntinnprr'_frr+c in tidal waters or non -tidal wetlands adjacent to tidal waters, provided the discharge dues not cause the loss of greater than 1/3 acre of waters of the United Slates and the length of fill for the crossing in waters of the United States does not exceed 200 linear feet, or; b. The permittee must notify the District Engineer in accordance with General Condition 13 if any of the following criteria are met. (1) The discharge causes the loss of greater than 1 /10 acre of waters of the United States; or (2) There is a discharge in a special aquatic site, including wetlands; c. The notification most include a compensatory mitigation proposal to offset permanent losses of waters of the United States to ensure that those losses result only in minimal adverse effects to the aquatic environment and a statement describing how temporary losses of waters of the United States will be minimized to the maximum extent practicable; d. For discharges in special aquatic sites, including wetlands, the notification must include a delineation of the affected .special aquatic sites; e. The width of the fill is limited to the minimum necessary for the crossing; f. This permit dues not authorize stream channelizatiun, and the authorized activities must not cause more than minimal changes to the hydraodre flow characteristics of the stream, increase flooding, or cause more than minimal degradation of water quality of any stream (see General Conditions 9 and 21); g. This permit cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars; and h. The crossing is a single and complete project for crossing a water of the United States. Where a road segment (i.e., the shortest segment of a road with independent utility that is part of n larger project) has multiple crossings of streams (.several single and complete projects) the Corps will consider whether it should use its discretionary authority to require an individual permit. (Sections l0 and 404) Moir Some discharges for the construction of farm roads, forest roads, or temporary roads for moving mining equipment may be eligible for an exemption from the need for a Section 404 permit (see 33 CFR 323.4). Nationwide Number 33: Temporary Constmchon, A, crss and Dewatering Temporary stnrctures, work and discharges, including cofferdams, necessary for construction activities or access fills or dewatering of construction sites; provided that the associated primary activity is authorized by the Corps of Engineers or the U.S. Const Guard, or for other construction activities not subject to the Corps or U.S. Coast Guard regulations. Appropriate measures must be taken to maintain near normal downstream flows and to minimize Flooding. Fill most be of materials, and placed in a manner, that will not be eroded by expected high flows. The use of dredged material may be allowed it it is determined by the District Engineer that it will nut cause more than minimal adverse effects on aquatic resources. Temporary fill must be entirely removed to upland areas, or dredged material returned to its original location, following completion of the construction activity, and the affected areas must be restored to the pre project amditions. Cofferdams cannot be. used In dewater wetlands or other aquatic areas so as In change their use. Slntctures left in place after cofferdams are removed require a Swoon 10 permit if located in navigable waters of the United Stat,'. (Sts 33 CF1t Part 322). The permittee must notify the District Engineer in accordance with the "Notification" general condition. The notification most also include a restoration plan of reasonable moasures to avoid and minimae adverse affects to aquatic resources The DI,tact Fngme,r will add special conditions, where necessary, to ensure that adverse environmental effects are minimal Such Conditions may include: limiting the temporary work nr the •mimum necessary; requiring seasonal restrichnnN; modifying the restoration plan; and requiring alternative construction methods g., construction mats in wetlands where practicable,). (Sections 10 and 404) 0 0 's. Nationwide Permit General Conditions. The following general conditions must be followed in order for any authorization by an NWP to be valid: I. Navigation. No activity may cause more Ihan a minimal adverse effect on navigation. 2. Proper Maintenance. Any structure or fill authorized shall be properly maintained, including maintenance to ensure public safety. 3. .Soil Frosion and Sediment Corlmis. Appropriate soil erosion and sediment controls must be used and maintained in effective operating condition during construction, and all exposed sod and other fills, as well as any work below the ordinary high water mark or high tide line, must be permanently stabilized at the earliest practicable date. Permittees are encouraged to perform work within waters of the United States during periods of low -flow or no -flow. 4. Aquotic Life Movernents. No activity may substantially disrupt the necessary life -cycle movements of those spocies of aquatic life indigenous to the waterhody, Including those sperias that normally migrate through the area, unless the activity's primary purpose is to impound water. Culverts placed in streams must be installed to maintain low flow conditions. .S. Equipment. Heavy equipment working in wetlands must be placed on mats, or other measures must he taken to minimize soil disturbance. 6, Regional and Case Sy -Case Conditions. The activity must comply with any regional conditions that may have been added by the Division Engmeer (sec 33 CFR 330.4(e)). Additionally, any rase specific conditions added by the Corps or by the state or tribe in its Section 401 Water Quality Certification and Coastal Zone Management Act consistency determination. 7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild and Scenic River System; or in a river officially designated by Congress as a "study river' for possible inclusion in the system, while the river is in an official study status; unless the approptiate Federal agency, with direct management responsibility for such river, has determined in writing that the proposed activity will not adversely affect the Wild and Scenic River designation, or study status. Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency in the area (e g., National Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service). 8. Tribal Rights. No activity or its operation may unpair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. 9 Water Quality. (a) In certain states and tribal lands an individual 401 Water Quality Certification must be obtained or waived (See 33 CFR 330.4(c)). (h) For NW Ps 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, where the stale or tribal 401 certification (either generically or individually) dies not require or approve water quality management measures, the permittee must provide water quality management measures that will ensure that the authorized work does not result in more than minimal degradation of water quality (or the Corps determines that compliance with state or local standards, where applicable, will ensure no more than minimal adverse effect on water quality). An important component of water quality management includes stormwater management that minimizes degradation of the downstream aquatic system, including water quality (refer to General Condition 21 for stormwater management requirements). Another important component of water quality management is the establishment and maintenance of vegetated buffers next to open waters, including streams (refer to General Condition 19 for vegetated buffer requirements for the NWPs). This condition is only applicable to projects that have the potential to affect water quality. While appropriate measures must be taken, in most cases it is not necessary to conduct detailed studies to identify such measures or to require monitoring. 10. Canslal Zonr Management. In certain states, an individual state Coastal zone management consistency concurrence must be obtained or waived (see Section 330.4(d)). 11. Fridangrred species. (a) No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will destroy or adversely modify the critical habitat of such species. Non-federal permittees shall notify the District Engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or is located in the designated critical habitat and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that may affect I'ederally-listed endangered or threatened species or designated critical habitat, the notification must include the name(s) of the endangered nr threatened species that may be affected by the proposed work or that utilize the designated critical habitat that may be affected by the proposed work. As a result of formal or informal consultation with the FWS or NMFS the District Engineer may add species-specific regional endangered species conditions to the NIvN'Ps. (b) Authorization of an activity by a NWP does not authorize the "take" of a threatened or endangered species as defined ander the ESA. In the absence of separate authorization to g., an ESA Section 10 Permit, a Biological Opinion with "incidental take" provisions, etc.) from the USFWS or the NMFS, both lethal and non -lethal "takes" of protected species are in violation of the ESA. Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the USFWS and NMFS or their world wide web pages at http:llwwwfws.guv/r9endspp/endspp.html and http//www.nfm.q.gov/prct_zes/esihome.l)tmI respectively. 12. f listvric Properties. No activity which may affect historic properties listed, or eligible for listing, in the National Register of I listoric Places is authorized, until the District Engineer has complied with the provisions of 33 CFR Part 325, Appendix C The prospective permittee must notify the District Fngineer if the authorlved activity may affect any historic properties luted, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing on the National Register of f listoric Places, and shall not begin the activity until notified by the District Engineer that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. Information on the location and existence of historic resources can tx obtained from the State Historic Preservation Office and the National Register of Historic Places (see 33 CFR 330.4(g)). For activities that may affect historic properties listed in, or eligible for listing in, the National Register of I hetoric Places, the notification must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. 13. Noli)ication. (a) Timing: where required by the terms of the NWP, the prospective permittee, must notify the District Engineer with a preconstruction notification (PCN) as early as possible. The District Engineer must determine if the notification is complete within 30 days of the date of receipt and can request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the District Engineer will notify the prospertive permittee that the notification is ..still incomplete and the PCN review process will not commence until all of the requested information has been received by the District Engineer. 7 he prospective permittee shall not begin the activity: (1) Until notified in writing by the District Engineer that the activity may proceed under the NWP with any special conditions imposed by the District or Division Lngineer, or (2) If notified in writing by the District or Division Engineer that an Individual Permit is required; or (3) Unless 45 days have passed from the District Engineer's receipt of the complete notification and the prospective permittee has not received written notice from the District ur Division Engineer. Subccequen Fly, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only m accordance with the procedure set forth in 33 CFR 33Q5(d)(2). (b) Contents of Notification: The notification must be in writing and include the following information: (1) Name, address and telephone numbers of the prospective permittee; (2) Location of the proposed project; (3) Brief description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause; any other NWP(s), Regional General Pertnit(a), or Individual Permit(s) used or intended to be used to authorize any part of the proposed project or any related activity. Sketches should be provided when necessary to show that the activity complies with the terns of the N WP (Sketches usually clarify the project and when provided result In a quicker decision.); (4) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 41, 42, and 43, the PCN must also include a delineation of affected special aquatic sites, including wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagross beds), and riffle and pool complexes (we paragraph 13(f)); (5) For NWP 7 (Outfall Structures and Maintenance), the PCN must include information regarding the original design capacities and configurations of thuse areas of the facility where maintenance dredging or excavation is Proposed; (b) For NWP 14 (Linear] ranspurtatiun Crossings), the PCN must include a compensatory mitigation proposal to Offset permanent losses of waters of the US and a statement describing how temporary josses of waters of the US will be minimized to the maximum extent practicable; (7) For NWP 21 (Surface Coal Mining Activities), the PCN must include an Office of Surface Mining (OSM) or state - approved mitigation plan, it applicable. 'I to be authorized by this NI4'P, the District Engineer must determine that the activity complies with the terms and conditions of the NWP and that thv adverse environmental effects are minimal both individually and cumulatively and must notify the project sponsor of this determination in writing; (8) For NWP 27 (Stream and Wetland Restoration), the PCN must include documentation of the prior condition of the site that will be reverted by the permittee; (9) For NWP 29 (Single -Family Housing), the PCN most also include: (i) Any past use of this NWP by the Individual Permittee and/or the permittee's spouse; (n) A statement that the single-family housing activity is for a personal residence of the permittee; (iii) A description of the entire parcel, including its size, and a delineation of wetlands. For the purpose of this NWP, parcels of land measuring Vr-acre or less will not require a formal un -site delineation. However, the applicant shall provide an indication of where the wetlands are and the amount of wetlands that exists on the property, For parcels greater than '/a -acre in size, formal wetland delineation must be prepared in accordance with the current method required by the Corps. (See paragraph 13(f)); (iv) A written description of all land (including, if available, legal descriptions) owned by the prospective permittee and/or the prospertive permihee's spouse, wdhm a one mile radius of the parcel, in any form of ownership (including any land owned as a partner, corporation, joint tenant, cn-tenant, nr as a tenant by the -entirety) and any land on which n purchase mid sale agreement or other contract for 0 0 sale or purchase has been executed; (10) For NWP 31 (Maintenance of Existing Flood Control Projects), the prospective permittee must either notify the District Engineer with a PCN prior to each maintenance activity or submit a five year (or less) maintenance plan. In addition, the PCN must include all of the following: (i) Sufficient baseline information identifying the approved channel depths and configurations and existing facilities. Minor deviations are authorized, provided the approved flood control protection or drainage is not increased; (ii) A delineation of any affected special aquatic sites, including wetlands; and, (iii) Location of the dredged material disposal site; IT 1) For NWP 33 (Temporary Construction, Access, and Dewatering), the PCN must also include a restoration plan of reasonable measures to avoid and minimize adverse effects to aquatic resources; (12) For NWPs 39, 43 and 44, the PCN must also include a written statement to the District Engineer explaining how avoidance and minimization for losses of waters of the US were achieved on the project site; (13) For NWP 39 and NWP 42, the PCN must include a compensatory mitigation proposal to offset losses of waters of the US or justification explaining why compensatory mitigation should not be required. For discharges that cause the loss of greater than 3001inear feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; (14) For NWP 40 (Agricultural Activities), the PCN must include a compensatory mitigation proposal to offset losses of waters of the US. 'I his NWP does not authorize the relocation of greater than 300 linear -feel of existing serviceable drainage ditches constructed in non -tidal streams unless, for drainage ditches constructed in intermittent non -tidal streams, the District Engineer waives this criterion in writing, and the District Engineer has determined that the project complies with all terms and conditions of this NWI', and that any adverse impacts of the project on the aquatic environment are minimal, both individually and cumulatively; (15) For NWP 43 (Stormrwater Management Facilities), the PCN most include, for the construction of new stormwater management facilities, a maintenance plan (in accordance with .state and local requirements, if applicable) and a compensatory mitigation proposal to offset losses of waters of the US. For discharges that rause the loss of greater than 300 hncar feet of an intermittent stream bed, to be authorized, the District Engineer must determine that the activity complies with the other terms and conditions of the NWP, determine adverse environmental effects are minimal both individually and cumulatively, and waive the limitation on stream impacts in writing before the permittee may proceed; (16) For NWP 44 (Mining Activities), the I'CN must include a description of all waters of the US adversely affected by the project, a description of measures taken to minimize adverse effects to waters of the US, a description of measures taken to comply with the criteria of the NWP, and a reclamation plan (for all aggregate mining activities in isolated waters and non -tidal wetlands adjacent to hindwaters and any hard rack/mineral mining activities); (17) For achvities that may adversely affect Federally -listed endangered or threatened species, the PCN must include the name(s) of those endangered or threatened species that may be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work; and (18) For activities that may affect historic properties listed in, or eligible for listing in, the National Register of I Imtoric Places, the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. (c) Form of Notification: The standard Individual Permit application form (Form ENG 4345) may be used as the notification but must clearly indicate that it is a PCN and must include all of the Information required in (b) (1)-(18) of General Condition 13. A letter containing the requisite information may also be used. (d) District Fngerrerb Drrisiwn In reviewing the PCN for the proposed activity, the District Engineer Will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. The prospective perminee may submit a proposed mitigation plan with the PCN to expedite the process. The Dish let Fnglneer will consider any pruposed compensatory mitigation the applicant has included in the proposal in determining whether the net adverse environmental effects to the aquatic environment of the proposed work are minimal. If the District Engineer determines that the activity complies with the terms and conditions of the .NWP and that the adverse effects on the aquatic environment are minimal, after considering mitigation, the District Engineer will notify the permittee ,cod include any conditions the District Engineer deems necessary. The Drsh'Ict Fngmeer must approve any compensatory mitigation proposal before the permittee commences work. If the prospective permittee is required to submit a compensatory mitigation proposal with the PCN, the proposal may be either conceptual or detailed. If the prospective permittee elects to submit a compensatory mitigation plan with the PCN, the District Engineer will expeditiously review the proposed compensatory mitigation plan. The Districl Engineer must review the plan within 45 days of receiving a complete PCN and determine whether the conceptual or specific proposed mitigation Would ensure no more than minimal adverse effects on the aquatic environment. If the net adverse effects of the project on the aquatic environment (after consideration of the compensatory mitigation proposal) are determined by the District Engineer. to be minimal, the District Engineer will provide a timely written response to the applicant. The response will state that the project can proceed under the terms and conditions of the NWP. If the District Engineer determines that the adverse effects of the proposed work are more than minimal, then the District Engineer will notify the applicant either: (1) that the project does not qualify for authorization under the NWP and instruct the applicant on the. procedures tri authorization under an individual Permit (2) that the project is authorized under the NWP subject to the applicant's submission of a mitigation proposal that would reduce the adverse effects on the aqualic environment to the minimal level; or (3) that the project is authorized under the NWP with specific modifications or rondiiions. Where (tie District Engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period, The authorization will include the necessary conceptual or specific mitigation or a requirement that the applicant submit a mitigation proposal that would reduce the adverse effects on the aquatic environment to the minimal level. When conceptual mitigation is included, or a mitigation plan is required under item (2) above, no work in waters of the US will occur until the District Engineer has approved a specific mitigation plan. (r) Agency Coordination: The District Engineer will consider any comments from Federal and state agencies concerning the proposed activity's compliance with the terms and conditions of the NWPs and the need for mitigation to reduce the project's sdvorse environmental effects to a minimal level. For activities requiring notification to the District Engineer that result in the loss of greater than eh-acre of waters of the US, the District Engineer will provide immediately (e.g., via facsimile transmission, overnight mail, or other expeditious manner) a copy to the appropriate Federal or slate offices (USFWS, state natural resource or water quality agency, EPA, State Historic Preservation Officer (SHPO), and, if appropriate, the NMFS). With the exception of NWP 37, these agencies will then have 10 calendar days from the date the material is transmitted to telephone or fax the District Engineer nutice that they intend to provide substantive, site-specific comments. If sit contacted by an agency, the District Engineer will wart an additional 15 calendar days before making a decision on the notification. The District Engineer will fully consider agencv comments received within the specified lime frame, but will provide no response to the resource agency, except as provided below. the District Engineer will indicate in the administrative record associated with each notification that [be resource agori 'concerns were considered. As required by Section 305(6)(4)(6) of the Magnuson-Stevens Fishery Conservation and Management Act, the District Engineer will provide a response to NMFS within 30 days of receipt of any Essential Fish Habitat conservation recommendations. Applicants are encouraged to provide the Corps multiple copies of notifications to expedite agency notification. (I) Wetlair Deliueatimts: Wetland delineations must be prepared in accordance with the current method required by the Corps (For NWP 29 see paragraph (b)(9)(m) for parcels less than 'A-acre in size). The permittee may ask the Corps to delineate the special aquatic site There may be some delay if the Corps dues the delineation. Furthermore, the 45-day period will not start until the wetland delineation has been completed and .submitted to the Corps, where appropriate. 14. Complianrt Crth iralion Every perinowe who has received NWP verification from the Corps will submit a signed certification regarding the completed work and any required mitigation. The certification will be forwarded by the Corps with the authorization letter and will Include: (a) A statement that the authorized work was done in accordance with the Corps authorization, including any general or specific conditions; (b) A statement that any required mitigation was completed in accordance with the permit conditions; and (c) The signature of the permittee certifying the completion of the work and mitigation. 15 Usr of Mulliple Nationwide Permits. 'Phe use of more than one NWP for a single and complete project is prohibited, except when the nrreago loss of waters of the US authorized by the NWPs does not exceed the acreage limit of the NWP with the highest specified acreage limit (e.g. if a road crossing over tidal waters is constructed under NWP 14, with associated bank stabilization authomed by NWP 13, the maximum acreage loss of waters of the US for the total project cannot exceed 1/3- acre). 16. Water Supply Intakes. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may occur in the proximity of a public water supply intake except where the activity is for repair of the public water supply intake structures or adjacent bank stabilization. 17. Shellfish Huls. No atMivuy, including structures and work in navigable water> of the US or discharges of dredged or fill material, may occur in areas of concentrated shellfish populations, unless the activity is directly related to a shellfish harvesting activity authorized by NWP 4. 18. Suitable Material. No activity, including structures and work in navigable waters of the US or discharges of dredged or fill material, may consist of unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.) and material used for construction or discharged must be free from toxic pollutants in toxic amounts (.see Section 307 of the CWA). 19. Mitigation. The District Engineer will consider the factors discussed below when determining the acceptability of appropriate and practicable mitigation necessary to offset advorse effects on the aquatic environment that are more than minimal. (a) The project most be designed and ronstnmted to avoid and minimize adverse effects to waters of the US to the maximum extent practicable at the project site (i.e., on site). (b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or compensating) will be required to the extent necessary to ensure that the adverse effects to the aquatic envi moment are minimal. (r) Compensatory mitigation at a minimum uric -for -one ratio will be required for all wetland impacts requiring a PCN, unless the District Engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project -specific waiver of this requirement. Consistent with National policy, the District Engineer will establish a preference for restoration of wetlands as compensatory mitigation, with preservation used only in exceptional circumstances. (d) Compensatory mitigation (i.e., replacement or substitution of aquatic resources for those impacted) will not be used to increase the acreage losses allowed by the acreage limits of some of the NWPs. For example, r/. -acre of wetlands cannot be created to change a ``/a-arre loss of wetlands fo a'/2 acre l ss associated with NWP 39 verification. However, 42 -acre of created wetlands can be used to reduce the impacts of a 'A -acre loss of wetlands to the minimum impact level in order to meet the minimal impact requirement associated with NWPs. (e) 1 o be practicable, the mitigation must be available and capable of being done considering costs, existing technology, and logistics in light of the overall project purposes. Examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the size of the project; establishing and maintaining wetland or upland vegetated buffers to protect open waters such as streams; and replacing losses of aquatic resource functions and values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed. (f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the establishment, maintenance, and legal protection (e.g., casements, deed restrictions) of vegetated buffers to open waters. In many cases, vegetated buffers will be the only compensatory mitigation required. Vegetated buffers should consist of native species. The width of the vegetated buffers required will address dummented water quality or aquatic habitat Ions concerns. Normally, the vegetated buffer will be. 25 to 50 feet wide on each side of the stream, but the District Engineers may require slightly wider vegetated buffers to address documented water quality or habitat loss cuncerris. Where hoth wetlands and open waters exist on the project site, the Corps will determine the appropriate compensatory mitigation (e.g., stream buffers or wetlands compensation) based on what is best for the aquatic environment un a watershed basis, In cases where vegetated buffers are determined to be the most appropriate form of compensatory mitigation, the District Engineer may waive or redure the requirement to provide wetland compensatory mitigation for wetland impacts. (g) Compensatory mitigation proposals submitted with the "notification' may be either conceptual or detailed. If conceptual plans are approved under the verification, then the Corps will condition the verification to require detailed plans be submitted and approved by the Corps prior to construction of the authorized activity in waters of the U'S. (h) Permittees may propose the use of mitigation banks, in -lieu fee arrangements or separate activity -specific cumpensatury mitigation. In all cases that require compensatory mitigation, the mitigation provisions will spenfy the party responsible for accomplishing and/or complying with the mitigation plan. 20. Spnruning Arno. Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, in spawning areas during spawning seasons must be avoided to the maximum extent practicable. Activities that result in the physical destruction (e.g., excavate, fill, or smother downstream by substantial turbidity) of an important spawning area are not authurt/ed. 21. Mrrrgrr2rn1 of Water Flows. To the maximum extent practicable, the activity must be designed to maintain preconstruction downstream flow conditions (e.g., location, capacity, and flow rates). Furthermore, the activity must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose of the fill is to impound waters) and the structure or discharge of dredged or fill material must withstand expected high flows. The activity must, to the maximum extent practicable, provide for retaining excess flows from the site, provide for maintaining surface flow rates from the site similar to preconstruction conditions, and provide for not increasing water flows from the project site, relocating water, or redirecting water flow beyond preconstruction conditions. Stream channelizing will be reduced to the minimal amount necessary, and the activity must, to the maximum extent practicable, reduce adverse effects such as flooding or erosion downstream and upstream of the project site, unless the activity is part of d larger system designed to manage water fluws. In most cases, it will not be a requirement to conduct detailed studies and monitoring of water now. this condition is only applicable to projects that have the potential to affect waterflows. While appropriate measures must he taken, it is not necessary to conduct detailed studies to identify such measures or require monitoring to ensure their effectiveness. Normally, the Corps will defer to state and local authorities regarding management of water flow. 22. Arivrrse E(Jecls Front Inpruundmrnls. if the activity creates an impoundment of water, adverse effects to the aquatic system due to the acceleration of the passage of water, and/or the restricting its flow shall be minimized to the maximum extent practicable. This includes structure -sand work in navigable waters of the US, or discharges of dredged or fill material. 23. WnrerfovA Breeding Arras. Activities, including structures and work in navigable waters of the US or discharges of dredged or fill material, into hreedmg areas for migratory waterfowl must be avoided to the maximum extent practicable. 29. Removal of Temporary Fills. Any temporary fills must be removed in their entirety and the affected areas returned to their preexisting elevation. 25. Uestenated Critical Resource Writers. Critical resource waters include, NOAA-designated marine sanctuaries, National 9 0 Estuarine Research Reserves, National Wild and Scenic Rivers, critical habitat for Federally listed threatened and endangered species, coral reefs, state natural heritage sites, and outstanding national resource waters or other waters officially designated by a state as having partirolar environmental or ecological significance and identified by the District Engineer after notice and opportunity for public comment. "the District Engineer may also designate additional critical resource waters after notice and opportunity for comment. (a) Except as noted below, discharges of dredged or fill material into waters of the US are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 fur any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters. Discharges of dredged or fill materials into waters of the US may be authorized by the above NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 7. Further, such discharges may be authorized in designated critical habitat for Federally listed threatened or endangered species if the activity complies with Cenral Condition Il and the USFWS or the NMFS has concurred in a determination of compliance with this condition. (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with General Condition 13, fur any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The District Engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal. 26. Frits Within 100-Yror Fltxidpfnins. For purposes of this General Condition, 100 -year floodplains will be identified through the existing Federal Emergency Management Agenry s (FEMA) Flood Insurance Rate Maps or FEMA -approved local floodplain maps. (a) Discharges in floodpLiin; Brloeo Headn+afers. Discharges of dredged or fill material into waters of the US within the mapped 100 -year (loud plain, below headwaters (i.e. five cfs I, resulting in permanent above -grade fills, are not authorized by N W Ps 39, 40, 42, 43, and 44. (b) Discharges in Flwdzmy; AbQm Headreaters. Discharges of dredged or fill matenal into waters of the CS withm the FEMA or locally mapped floodwoy, resulting in permanent abuve-grade fills, are not authorized by NWPs 39, 40, 42, and 44. (c) the permit lee must comply with any applicable FEMA -approved state or local floodplain management requirements. 27. Construction Period. For activities that have not been verified by the Corps and the project was commenced or under contract to commence by the expiration date of the N Wls (or modification or revocation date), the work most be completed within t2 months aftersuch dale (including any modification that affects the project). For activities that have been verified and the protect was commenced or under contract to commence within the verification period, the work must be completed by the date determined by fire Corps. For projects that have been veto fled by the Corps, an extension of a Corps approved completion date may be requested. This request must be submitted at least one month before the previously approved completion date. 3. Regional Conditions for the Los Angeles District In accordance with General Condition Number 6, "Regional and Case -by -Case Conditions,' Um following Regional Conditions, as added by the Division Engineer, must be met in order for an authorization by any Nationwide to be valid: 1. For a»stal watersheds from the southern reach of the Santa Monica Mountains in Los Angeles County to the San Lums Obispo County/Monterey County boundary, all road crossings most employ a bridge crossing design that ensures passage and/or spawning of vteelhcad (Oncorhyrirhus nryki.ss) is not hindered in any way. In these areas, bridge designs that span the stream or river, including designs for pier- or pile -supported spans, nr designs based on use of a bottomless arch culvert simulating the natural stream bed io e., substrate and streamflow conditions in the culvert are similar to undisturbed stream bed channel conditions) shall he employed unless it can be demonstrated the stream or river dues nut support resources conducive to the recovery of federally listed Anadrmnous salmonids, including migration of adults and smalls, or rearing and spawning. This proposal also excludes approach embankments into the channel unless they are determined to have no detectable effect un stcclhcad 2. For the State of Arizona and the Mojave and Sonoran (Colorado) desert regions of California in Los Angeles District (generally north and east of (tie San Cabriel, San Bernardino, San Jacinto, and Santa Rosa mountain ranges, and south of Little Lake, Inyo County), no nationwide permit, except Nationwide Permits 1 (Aids to Navigation), 2 (Structures in Artificial Canals), 3 (Maintenance), 4 (Fish and Wildlife I larvrsting, Enhancement, and Attraction Devices and Activities), 5 (Scientific Measurement Devices), 6 (Survey Activities), 9 (Structures in Fleeting and Anchorage Areas), 10 (Mooring Buoys), 1 I (temporary Recreational Structures), 20 (Oil Spill Cleanup), 22 (Removal of Vessels), 27 (Stream and Wetland Restoration Activities), 30 (Moist Sell Management for Wildlife), 31 (Maintenance of Existing Flood Control projects), 32 (Completed Enforcement Actions), 35 (Mainternnce Dredging of Existing Basins), 37 (Emergency Watershed Protection and Rehabilitation), and 38 (Cleanup of Hazardous and Toxic Waste), or other nationwide or regional general permits that specifically authorize maintenance of previously authorized structures or fill, can be used to authorize the discharge of dredged or fill material into a jurisdictional special aquatic rile as defined at 40 CFR Part 230.40-4.5 (sanctuaries and refuges, i 0 wetlands, mudflats, vegetated shallows, coral reefs, and riffle -and -pool complexes). 3. For all projects proposed for authorization by nationwide or regional general permits where prior notification to the District Engineer is required, applicants must provide color photographs or color photocopies of the project area taken from representative points documented on a site map. Pre -project photographs and the site map would be provided with the permit application. Photographs should represent conditions typical or indicative of the resources before impacts. 4. Notification pursuant to general condition 13 shall be required for projects, in all special aquatic sites as defined at 40 CFR Part 230.40-45 (sanctuaries and refuges, wetlands, mudflats, vegetated shallows, cural reefs, and riffle -and -pool complexes), and in all perennial watercourses or waterbodies in the State of Arizona and the Mojave and Sonoran (Colorado) desert regions of California in Los Angeles District (generally north and east of the San Gabriel, San Bernardino, San Jacinto, and Santa Rena mountain ranges, and south of Little Lake, Inyo County), excluding the Colorado River from Davis Dam downstream to the north end of Topuck and downstream of Imperial Dam. 5. Notification pursuant to general condition 13 shall be required for projects in all areas designated as Essential Fish Habitat by the Pacific Fishery Management Council (se., all tidally influenced areas). 6. Notification pursuant to general condition 13 shall be required for projects in all watersheds in the Santa Monica Mountains in Los Angeles and Ventura counties bounded by Calleguas Creek on the west, by Highway 101 on the north and east, and by Sunset Boulevard and Pacific Ocean on the south. 7. Individual permits shall be required for all jurisdictional vernal pools. S. Individual permits shall be required In Murrieta Creek and "Temecula Creek watersheds in Riverside County for new permanent fills in perennial and intermittent watercourses otherwise authorized under N WPs 39, 42 and 43, and in ephemeral watercourses for these NWPs for projects that impact greater than 0.1 acre. 9. Individual permits shall he required in San Luis Obispo Creek and Santa Rosa Creek in San Luis Obispo County for bank attbilizatiun projects, and in Gaviota Creek, Mission Creek and Carpinteria Creek in Santa Barbara County for bank stabilization projects and grade control structures. 4. Further information: 1. Congressional Authorities: You have been authorized to undertake tho activity described above pursuant to: ( ) Section 10 of the Rivers and Harbors Act of 1699 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). 2. limits of this authorisation. (a) This permit does not obviate the need to obtain other Federal, state, or local authorizations 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 properly or rights of others. (d) This permit does not authorise interfercncc with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume nny liability for the following: (a) Damages In the permitted project or uses thereof as a result of other permitted or unpermoted activities or from natural causes. (b) Damages to the permitted project of uses thereof as a result of current or future activities undertaken by or un behalf of the United States in the public interest. (c) Damages to persons, property, or to other permitted or unpermnted 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 contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decieiun. This uftice 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). (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 330.5 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 measure ordered by this office, and if you fail to cumply 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. This letter of verification is valid for a period not to exceed two years unless the nationwide permit is modified, reissuud, revoked, or expires before that time. 7. 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 11 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. B. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space pruvided and forward a copy of the permit to this office to validate the transfer of this authorization. 9. 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 with the terms and conditions of your permit. 0California Regional Water Quality Control Board San Diego Region Terry Tamminen Intemm Ad&..,: http://www. swre6.mgov/rwgei,9/ 5arernryjnr 9)74 Sky Pak Cmn. Suite 100, San Diego, Cnlifomh 92M Arnold Sehwarzeneggrr Environnumra[ Phone (959) 467-2952 • FAX (958) 571-6972 Govtmur Prnrrctirm ' Action on Request for Clean Water Act section 401 Water Quality Certification and Waiver of Waste Discharge Requirements for Discharge of Dredged and/or Fill Materials PROJECT: Trabuco Creek Bridge (File No. 04C-017) APPLICANT: Min Saysay, Right -of -Way Manager Orange County Transportation Authority 550 South Main Street, 14184 Orange, CA 92683-1584 ACTION: ❑ Order for Low Impact Certification ❑ Order for Denial of Certification KOrdcr for Technically -conditioned ■Waiver of Waste Discharge Certification Requirements STANDARD CONDmONS: The following three standard conditions apply to all certification actions, except as noted under Condition 3 for denials (Action 3). t. This certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to section 13330 of the California Water Code and section 3867 of Title 23 of the California Code of Regulations (23 CCR). 2. This certification action is not intended and shall not be construed to apply to any discharge from any activity involving a hydroelectric facility requiring a Federal Energy Regulatory Commission (FERC) license or an amendment to a FFRC license unless the pertinent certification application was riled pursuant to 23 CCR subsection 3855(b) and the application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought. 3. The validity of any non -denial certification action (Actions I and 2) shall be conditioned upon total payment of the full fee required under 23 CCR section 3833, unless otherwise Stated in writing by the certifying agency, C'alijornia Envirotanental Protection Agency Rrrydrd ➢u➢rr ¢a I EXHIBIT "D" 4 0 Orange County Transporuition Authority ADDITIONAL CONDITIONS: E File No. 04C-017 In addition to the three standard conditions, the Orange County Transportation Authority shall satisfy the following: A. GENERAL CONDITIONS L The Orange County Transportation Authority shall, at all times, fully comply with the engineering plans, specifications and technical reports submitted with this application fol -401 Water Quality Certification and all subsequent submittals required as part of this certification. 2. The Orange County Transportation Authority shall maintain a copy of this certification at the project site so as to be available at all times to site personnel and agencies. 3. Prior to the start of the project, the Orange County Transportation Authority shall educate all personnel on the requirements in this Certification, pollution prevention measures, spill response, and materials management. 4. The Orange County Transportation Authority shall permit the Board or its authorized representative at all times, upon presentation of credentials: a) Entry onto project premises, including all areas on which wetland fill or wetland mitigation is located or in which records arc kept. b) Access to copy any records required to be kept under the terms and conditions of this certification. C) Inspection of any treatment equipment, monitoring equipment, or monitoring method required by this certification. d) Sampling of any discharge or surface water covered by this Order. 5. The Orange County Transportation Authority shall notify the Regional Board within 24 hours of any unauthorized discharge to waters of the U.S. and/or State; measures that were implemented to stop and contain the discharge; measures implemented to clean-up the discharge; the volume and type of materials discharged and recovered; and additional BMPs or other measures that will be implemented to prevent future discharges. 6. The Orange County Transportation Authority shall, at all times, maintain appropriate types and sufficient quantities of materials onsite to contain any spill or inadvertent release of materials that may cause a condition of pollution or nuisance if the materials reached a waters of the U.S. and/or State. 7. This Certification is not transferable to any person except after notice to the Executive Officer of the San Diego Regional W iter Quality Control Board (Regional Board). The applicant shall submit this notice in writing at least 30 days in advance of any proposed transfer. The notice must include a written agreement between the existing and new owner 2 of 12 0 0 Ornoge County Transportation Authority Dile No. 0IC-017 containing a specific date for the transfer of this Certification's responsibility and coverage __..._--- _----- between the current discharger and the new discharger. This agreement shall include an Acknowledgement that the existing owner is liable for compliance and violations up to the transfer date and that the new owner is liable from the transfer date on. S. In the event of any violation or threatened violation of the conditions of this certification, the violation or threatened violation shall be subject to any remedies, penalties, process or sanctions as provided for under state law. For purposes of section 401(d) of the Clean Water Act, the applicability of any state law authorizing remedies, penalties, process or sanctions for the violation or threatened violation constitutes a limitation necessary to assure compliance with the water quality standards and other pertinent requirements incorporated into this certification. 9. in response to a suspected violation of any condition of this certification, due Regional Water Quality Control Board (RWQCB) may require the holder of any permit or license subject to this certification to furnish, under penalty of perjury, any technical or monitoring reports the RWQCB deems appropriate, provided that the burden, including costs, of the reports shall be a reasonable relationship to the need for the reports and the benefits to be obtained from the reports. 10. In response to any violation of the conditions of this certification, the RWQCB may add to or Modify the conditions of this certification as appropriate to ensure compliance. 11. No additional riprap (or similar energy dissipation material), other than planned to provide fish passage, shall be placed within the channel bed without consulting with the Regional Board and CDFG. — 12. Construction activities within the channel bed shall not occur during rain events. 13. Material and equipment staging areas shall be located outside of the active channel and banks. 14. Best management practices (BMPs) shall be used during construction to prevent the discharge of pollutants and unanticipated disruption to the channel bed. a) A construction BMP plan addressing all phases of construction shall be kept on site, implemented, and revised as necessary to address shortcomings. i. The BMP plan shall address potential pollution discharges from all phases of construction, including, but not limited to: L Concrete pumping; 2. In -channel construction; 3. Crane placement, operation, and maintenenace; 4. Stockpiles and materials management; 5. Staging areas; 6. Low -flow bypass; 7. Equipment maintenance and fueling. 3 of 12 0 0 Orange County Transportation Authority File No. 04C-017 b) The BMP plan shall be explained to on-site personnel prior to the start of construction, and to new contractors/personnel as they begin work. c) The BMP plan shall include a weather -triggered action plan to prepare the site in advance of rains to prevent the discharge of pollutants in stormwater and rising creek flows. d) The BMP plan shall include provisions for routine visual monitoring of creek conditions. When discharges or potential discharges arc found to occur, BMPs must be immediately improved. i. Any discharges of construction -related materials shall be reported to the Regional Board within 24 hours. e) Structural BMPs shall he designed and used to prevent a net increase in sediment from the project site. i. Downstream sediment concentrations shall be visually inspected each day that equipment is operating within the channel bottom, and BMPs shall be improved whenever concentrations of sediment within the water appear to be increasing. 15. Flow diversions during construction shall be done in a manner that shall prevent pollution and/or siltation and which shall provide flows to downstream reaches. Flows to downstream reaches shall be provided during all times that the natural flow would have supported aquatic life. Said flows shall be sufficient quality and quantity, and of appropriate temperature to support fish and other aquatic life both above and below the diversion. Normal flows shall be restored to the affected stream immediately upon completion of work at that location. 16. This Certification does not address dewatering; separate authorization will be required from the Regional Board (per Regional Board Order No. R9-2001-96) for any dewatering impacts. B. POST CONSTRUCTION STORM WATER MANACFMFNT The Orange County Transportation Authority shall regularly inspect the project area and immediate downstream vicinity for effects from the project on sediment transport through the project area. a) If significant scour, sediment aggradation, bank erosion, or other such impacts have . occurred as a result of the project's influence on stream velocities, the Orange County Transportation Authority shall propose appropriate mitigation measures to the Regional Board within 30 days of discovery. b) The Orange County Transportation Authority shall document these inspections and provide the Regional Board a summary upon request by the Regional Board. 4 of 12 Orange County Transportation Authority File No. 046017 - - - - . -- -C. MITIGATION Mitigation for permanent impacts to 0.0335 acres resulting from this project, will be achieved by the implementation of aquatic habitat improvement measures in the project vicinity, including retrofitting the existing grade control structure to provide for a fish passage to accommodate steelhead trout migration. a) The Orange County Transportation Authority shall implement a Trabuco Creek Fish Access Project that is approved in writing by the California Department of Fish and Game and the National Oceanic and Atmospheric Administration. b) The Orange County Transportation Authority shall provide the Regional Board with a copy of the approved fish passage plan at least 60 days prior to initiation of construction activity. c) Habitat mitigation measures shall be completed within 90 days following completion of bridge replacement activities. 2. The Orange County Transportation Authority shall submit a repp (including topography maps and cross-sections) to the Regional Board within 90 days of project completion, describing as -built status of the project, including the restored area of temporary disturbance and habitat mitigation efforts described in Condition C. 1. above. 3. If at any time during the implementation and establishment of the mitigation area(s), and prior to verification of meeting success criteria, a catastrophic natural event (e.g., fire, flood) occurs and impacts the mitigation area, Orange County Transportation Authority shall be responsible for repair and replanting of the damaged area(s). 4. Mitigation monitoring reports shall be submitted annually until mitigation has been deemed successful. Monitoring reports shall be submitted no later than 30 days following the end of the monitoring period. Monitoring reports shall include, but not be limited to, the following: a) Names, qualifications, and affiliations of the persons contributing to the report; b) Tables presenting the raw data collected in the field as well as analyses of the physical and biological data; c) Qualitative and quantitative comparisons of current mitigation conditions with pre -construction conditions and previous mitigation monitoring results; d) Photodocumentation from established reference points; e) Survey report documenting boundanes of mitigation area; and 1) Other items specified in the draft and final Wetland and Riparian Mitigation and Monitoring Plan. D. REPORTING 1. All information requested in this Certification is pursuant to California Water Code (CWC) section 13267. Civil liability may be administratively imposed by the Regional Board for failure to furnish requested information pursuant to CWC section 13268. 5 of 12 Orange County Transportation Authority Filc No. 04C-017 All applications, repo is or infom atfon slibmifiedf ifFe Re'gid`nafBoariT sfiall Gc sighed and certified as follows: '7 certify under penalty of law that 1 have personally examinedand am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. l am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment." 3. The Orange County Transportation Authority shall submit reports required under this certification, or other information required by the Regional Board, to: Executive Officer California Regional Water Quality Control Board San Diego Region Attn: 401 Certification; File No 04C-017 9174 Sky Park Court, Suite 100 San Diego, California 92123 6 of 12 0 Orange County Transportation Authority PUBLIC NOTIFICATION OF PROJECT APPLICATION: File No. 04C-017 On February 9, 2004 receipt of the project application was posted on the SDRWQCB web site to serve as appropriate notification to the public. REGIONAL WATER QUALITY CONTROL BOARD CONTACT PERSON: Jeremy Haas California Regional Water Quality Control Board, San Diego Region 9174 Sky Park Court, Suite 100 San Diego, CA 92123 858-467-2735 haasj Crarb9.swrcb.ca.gov WATER QUALI'T'Y CER'TIF'ICATION: I hereby certify that the proposed discharge from the Trabuco Creek Bridge project (File No. 04C-017) will comply with the applicable provisions of sections 301 ("Effluent Limitations"), 302 ("Water Quality Related Effluent Limitations"), 303 ("Water Quality Standards and Implementation Plans"), 306 ("National Standards of Performance"), and 307 ("Toxic and Pretreatment Effluent Standards') of the Clean Water Act. This discharge is also regulated under California Regional Water Quality Control Board, San Diego Region, Waiver of Waste Discharge Requirements (Waiver Policy) No. 17. Please note that this waiver is conditional and, should new information come to our attention that indicates a water quality problem, the Regional Board may issue waste discharge requirements at that time. Except insofar as may be modified by any preceding conditions, all certification actions are contingent on (a) the discharge being limited and all proposed mitigation being completed in strict compliance with the applicants' project description and/or on the attached Project Information Sheet, and (b) on compliance with all applicable requirements of the Regional Water Quality Control Board's Water Quality Control Plan (Basin Plan). • �� f�i _ � ,�3 :zcv y JK ROBERTUS Date ecutive Officer Regional Water Quality Control Board Attachments: 1. Project Information 2. Distribution List 3. Location Map 4. Site Photo 7 of 12 0 Orange County Transportation Authority ATTACI MENT I -- PROJWrINF(RMATION--- _—.--- Applicant: Min Saysay, Right -of -Way Manager Orange County Transportation Authority 550 South Main Street, 14184 Orangb, CA 92683-1584 714-560-5737 fax: 714-567-5983 msaysay@octa.net Applicant - Chris Coffman Representatives: DMJM & Harris 515 S. Flower St., 9" Floor Los Angeles, CA 90071 213-593-8343 fax:213-593-8601 chris.coffn,on@dmjnihaTris.com File No. 04C-017 Pfoject Name: Trabuco Creek Bridge (File No. 04C-017) Project Location: „ The project is located in the City of San Juan Capistrano, at the railroad crossing over Trabuco Creek, and west of the intersection of Camino Capistrano and Junipero Serra Road. The site is between the continence of Trabuco Creek and Oso Creek and the 1-5 freeway. (San Juan Capistrano USGS quadrangle) Type of Project: iRail Bridge Replacement Project Description: The major components of this proposed rehabilitation are bridge superstructure replacement and 8 -inch concrete encasement of existing piers and abutments. The existing bridge superstructure is a 2 -span 181.02' long x 14' wide (excluding cantilever walkways) concrete deck on steel girder bridge. The existing abutment and center pier are reinforced concrete and will be rehabilitated by placement of 8 -inch thick reinforced concrete encasement. The existing bridge superstructure will be replaced in entirety. Form work and concrete pumping equipment will he required within the streambed during construction of the 8 -inch encasement. Lifting equipment will be required within the streambed during placement of the bridge superstructure. Federal Agency/Permit: U.S. Army Corps of Engineers § 404, NWP 14 Other Required Regulatory CDFG Strcambed Alteration Agreement Approvals: 8 of 12 Orange County Transportation Authority Pile No. 04C-017 California. Enviromnental_—T-he applicants have stated -the prajwc is.CF„QA. exemptpera statutory--- - - Quality Act (CEQA) Notice of Exemption issued by the Southern California Rail Authority on Compliance: September 17, 1991 for the Southern California Regional Rail Authority Commuter Rail System, Receiving Water: Trabuco Creek (HSA 901.23) Impacted Waters of the Temporary: United States: 0.0335 acres of streambed 'permanent: 0.0028 acres of streambed Dredge Volume: Na Related Projects The applicant will be replacing bridges for the same line over Aliso Creek Implemented/to be (401 file no. 04C-23) and Santiago Creek (Santa Ana Regional Board Implemented by the jurisdiction). In the future, (lie applicant plans to construct a second Applicant(s): bridge at the same location to provide double -tracking opportunities. Compensatory Mitigation: Temporary impacts will be restored to pre -project conditions. Compensatory mitigation for permanent impacts will be at a 1:1 ratio for streambed habitat and will include the addition of boulders and pools to the bridge's existing grouted riprap and concrete grade control structure in order to improve conditions for fish passage. (see Attachment 4, Figure 2.) Best Management The project is planned to rrunimize time spent in the creekbed, and Practices: sediment and erosion control BMPs will be used to prevent excessive scour. Public Notice: On February 9, 2004 receipt of the project application was posted on the SURWQCB web site to serve as appropriate notification to the public. Fees: Total Due: $.586.50 Total Paid: $586.50 (check No. 149817): 9 of t2 0 Orange County Transporintion Authority File No. 04C-017 ATTACHMENT2 _ __._—QiSTR]ITiI'TIUft LIST ---- Dan Swenson U.S. Army Corps of Engineers Regulatory Branch P.O. Box 532711 Los Angeles, CA 90053-2325 (213) 452-4196 (fax) State Water Resources Control Board Division of Water Quality Donna Cobb California Department of Fish and Game Chris Coffman DMJM & Harris 515 S. Flower St., 9'h Floor Los Angeles, CA 90071 10 of 12 Oranpc County Transporlalion Authority ATTACHMENT - LOCATION MAPS File No. 04C-017 Project Location maps from applicant. lROJAT +a 5 P TRWUCO CFJM BV4D= MP IO&S Al IA II. Y g� l �f r �� jay �i-r"�/"{ J 14V� Y(� f -i . • t �(j Figure I Vidafry Map 11 of 12 ;yg -.:.G � 7�f: w ... i�: * ., bayn..,�:;. y;.. ., .. f .a .� T N;=h.r • 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 EAx www.sanjuancapistrano.org ,dwon J�:5'± IA[ARtAAAifR • RslnlusAfR � 1961 1776 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDUN The City Council of San Juan Capistrano will meet at 7:00 p.m. on June 6, 2006 in the City Council Chamber in City Hall, to consider: "Consideration of License Agreement for Phase I of II (Trabuco Creek Bridge Superstructure) (Orange County Transportation Authority) ( Southern California Regional Rail Authority)" — Item No. D14. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, June 5, 2006 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Kathleen Springer, Acting Public Works Director. You may contact that staff member at (949) 949-443- 6363 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.or�. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-a�endas�sanivancapistrano.or�. Meg Monahan, CMC City Clerk cc: Metrolink; Orange County Transportation Authority; Railpros; Southern California Regional Rail Authority; Silverado Senior Living; Equestrian Coalition Committee; Kathleen Springer, Acting Public Works Director " Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 0 PrinleE on 100% Recycled Paper 32400 PASEO ADEI-ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 PAx www.sanjuancapistrano.org June 7, 2006 9 mmavoaano • rsTamsam 1961 1776 • 0 NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN On June 6, 2006 the City Council of San Juan Capistrano met regarding: "Consideration of License Agreement for Phase I of II (Trabuco Creek Bridge Superstructure) (Orange County Transportation Authority) ( Southern California Regional Rail Authority)" Item No. D14. The following action was taken at the meeting: Phase I of II license agrrement between the City, Orange County Transportation Authority (OCTA), and Southern California Regional Rail Authority (SCRRA), to replace the substrutureat the Trabuco Creek Bridge crossing approved (including specific language regarding the City's trail System in Section 5, which would require the creation of one twenty -foot wide bench in order to connect the existing trail at the Trabuce Creek Bridge); and the mayor authorized to sign the agreement. The following documents are in the process of being executed: n/a If you have any questions regarding this action, please contact Kathleen Springer, Acting Public Works Director at 949-443-6363 for more detailed information. Thank you, Meg Monahan, CMC City Clerk Cc: Metrolink; Orange County Transportation Authority; Railpros; Southern California Regional Rail Authority; Silverado Senior Living; Equestrian Coalition Committee; Kathleen Springer, Acting Public Works Director San Juan Capistrano: Preserving the Past to Enhance the Future 0 Prin[etl on 100% Recycled Paper