united states department of the interior - cci dev of the cofferdam, block nets would be installed...

United States Department of the Interior

IN REPLY REFER TO: OSEVEN00-20 l 2-F-0529

FISH AND WILDLIFE SERVICE Ventura Fish and Wildlife Office

2493 Portola Road, Suite B Ventura, California 93003

Antal Szijj , Senior Project Manager Los Angeles District, Corps of Engineers Department of the Army 2151 Alessandro Drive, Suite 110 Ventura, California 93001

December 6, 2013

Subject: Reinitiation of Consultation and Biological Opinion for Ventura County Watershed Protection District's J Street Drain Improvements, Ventura County, California (8-8-14-F-3R)

Dear Mr. Szijj:

This document transmits the U.S. Fish and Wildlife Service's (Service) biological opinion regarding reinitiation of consultation on the U.S. Army Corps of Engineers' (Corps) authorization, pursuant to Section 404 of the Clean Water Act (Clean Water Act), of Ventura County Watershed Protection District's (District) to construct improvements to the J Street Drain in the cities of Oxnard and Port Hueneme, Ventura County, California. At issue are the effects of the action and proposed revisions on the federally endangered tidewater goby (Eucyclogobius newberryi) and its critical habitat. This document was prepared in accordance with section 7(a)(2) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act). The Corps' authorization would be valid until March 2017, at which time the District could apply for a I-year extension. Your request for reinitiation of formal consultation was dated December 4, 2013 .

This biological opinion was prepared using information in your request for reinitiation as well as information that accompanied your original request. A complete record of this consultation can be made available at the Ventura Fish and Wildlife Office.

CONSULTATION HISTORY

On March 18, 2013, we issued a biological opinion (8-8-13-F-1) for the Ventura County Watershed Protection District's J Street Drain Improvement project, in which we analyzed the effects of proposed J Street Drain improvement activities on the tidewater go by and its critical habitat. We determined that the Corps' authorization of this project, as proposed, was not likely to jeopardize the continued existence of the tidewater go by, nor destroy or adversely modify its critical habitat. Furthermore, for reasons outlined in the biological opinion (8-8-13-F-1) we concurred with your determination that that project activities may affect, but are not likely to

Antal Szijj (8-8-14-F-3R)

adversely affect, the federally endangered California least tern (Sterna antillarum browni) and threatened western snowy plover (Charadrius nivosus nivosus).

On November 18, 2013, construction activities within the J Street Drain commenced in the uppermost extent of the action area pursuant to the original biological opinion (8-8-13-F-l). Construction activities included installation of a bladder dam diversion (coffer dam) and dewatering of the J Street Drain.

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On November 20, 2013 , a Service-approved biologist captured and relocated approximately 4,800 tidewater gobies downstream of the work area during the dewatering process. An unexpected amount of accumulated sediment and high water levels were encountered in the work area resulting in difficulties capturing tidewater gobies. In the process of dewatering, a single tidewater go by was stranded in the sediment and died of asphyxiation.

On the evening of November 20, 2013, and through the morning of November 21, 2013, approximately 0.46 inch of rain fell within the watershed of the J Street Drain causing flows that pushed aside the bladder dam diversion and dislodged a downstream blocking net. Upon inspection of the site on November 21 , 2013 , two tidewater go bi es were discovered entangled and dead in the dislodged blocking net.

On November 21, 2013, Chris Dellith of my staff received a telephone call from Angela Bonfiglio-Allen of the District, who expressed concern that due to higher water levels in the Ormond Lagoon and J Street Drain, many more tidewater gobies are present in the work area than originally anticipated. Therefore, Ms. Bonfiglio-Allen also expressed concern that the amount or extent of incidental take of tidewater gobies exempted in the original biological opinion (8-8-13-F-l) would be exceeded and asked if we could amend the biological opinion and increase the amount of incidental take of tidewater gobies we anticipated would occur up to 5 percent of the estimated population detected in the J Street Drain.

On December 3, 2013 , you and Mr. Dellith discussed during a telephone call the need to reinitiate consultation because new information (elevated water levels and approximately 4,800 tidewater gobies encountered in the uppermost work area) revealed that the construction activities would affect tidewater gobies to an extent not considered in the original biological opinion (8-8-13-F-1). Therefore, on December 4, 2013 , you requested that we reinitiate formal consultation based upon this new information.

BIOLOGICAL OPINION

DESCRIPTION OF THE PROPOSED ACTION

The District proposes to modify the J Street Drain' s existing trapezoidal cross-section to a wider channel with a rectangular cross-section and a deeper invert. The channel would remain a concrete-lined facility. The proposed action would be constructed in four phases, beginning at the downstream terminus of the existing channel where it discharges into the Lagoon and

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extending approximately 2.4 miles upstream to Redwood Street in the city of Oxnard. The project is intended to increase the capacity of channel and safely convey a 100-year flood event.

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The lower reach (i.e., Phase 1) would include a new transition structure and erosion control measures where it discharges into the Lagoon. Project activities proposed for Phase 1 include construction of a temporary sheetpile cofferdam within the lagoon, approximately 150 feet downstream of the transition structure. The sheetpile coffer dam would block tidal flow into the work area. Heavy equipment would be used for the construction activities. On November 18, 2013, the District installed blocking nets and a coffer dam. Substantial flows from rainfall on November 20 and 21, 2013, caused the coffer dam and downstream blocking net to fail; therefore, the District proposes to reinstall both the coffer dam and blocking net. Prior to construction of the cofferdam, block nets would be installed immediately upstream and downstream of the proposed coffer dam site to isolate it, and all native fish between the nets, including tidewater gobies, would be relocated beyond the downstream net before silt fence and sheetpile coffer dam installation begins. This work would be conducted by Service-approved, qualified biologists who would verify that all fish have been removed from the work area prior to the start of further construction. Flows originating upstream would be piped around the work area and into Perkins Drain, which is adjacent to and southeast of the transition structure. Groundwater wells would also be temporarily installed adjacent to the channel to facilitate dewatering of the work area. Once the cofferdam, groundwater wells, and flow diversion are installed, tidewater gobies remaining in the work area would be captured and relocated prior to dewatering. Approximately 0.29 acre of the soft-bottomed portion of the Lagoon would be dewatered.

Press-in steel sheetpiles would be placed to a depth of approximately 30 feet on both the east and west sides of the Phase 1 construction zone to act as vertical shoring and to protect adjacent structures, including residential housing, Oxnard Wastewater Treatment Plant (OWWTP) infrastructure, a storage facility, and a manufacturing facility. The sheetpiles would be installed after all tidewater gobies have been relocated and the work area is drained of surface water.

Less permeable soils with greater clay content are present approximately 30 feet below the ground surface. By installing the sheetpiles to a depth of 30 feet on either side of the work area, the District seeks to minimize the amount of groundwater extraction required to create a dry work area. Where the sheetpiles are within 40 feet of an existing structure, they would remain in place to enhance long-term stability. All other sheetpiles would be removed after the new concrete drain is complete.

The finished invert would be daylighted via an earthen ramp to the Lagoon at a 10 to 1 slope over a distance of up to 40 feet from the end of the existing concrete. The transition consists of a 10-foot- thick layer of 4-ton rock riprap that would be placed horizontally beneath the earthen ramp at the end of and at the same elevation as the concrete drain bottom to dissipate flow energy. The rock would replace existing rock riprap.

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Dewatering and isolation of the work area from surface flows would progress upstream with each construction phase. The cofferdam would remain in place throughout the entirety of Phase 1, which extends from the cofferdam to Hueneme Road, approximately 2,800 feet upstream. Water generated by dewatering activities would be tested in accordance with the requirements of the Regional Water Quality Control Board prior to discharging into the Perkins Drain. Dewatering during Phases 2 through 4 would involve a similar surface water bypass that would discharge back into the J Street Drain, downstream of the active construction area. Because portions of the channel are located relatively close to the Pacific Ocean shoreline, the dewatering would require pumping so that the water table is lowered to approximately mean sea level and below, to accommodate construction activities.

The District proposes to use two different access routes, described below, to the work area during construction activities. Use of the second access route would be subject to seasonal restrictions.

1. Egress to the east from the downstream end of Phase 1 would follow existing access just south of the OWWTP south fence to Perkins Road. This route becomes smaller and overgrown with vegetation near a small drainage, fenced greenhouse, and a vegetation restoration area (approximately 150 feet west of Perkins Road).

2. An existing dirt road north of Perkins Drain may be used for access only when California least terns are absent, as confirmed by a qualified biologist (approximately September 15 through May 1).

To reduce adverse effects to tidewater gobies, the District has incorporated several general Best Management Practices (BMPs) into their project description. The proposed BMPs are listed as follows:

• A void work during rain periods. (This is a change from the project description analyzed in original biological opinion, which prohibited work from December 1 through April 1. This change has been made because work can still be performed without substantially affecting the tidewater goby during those periods when rain is not falling or imminent.)

• Prevent discharge of silt-laden water during concrete channel cleaning;

• Locate temporary stockpiles outside of the channel;

• A void road base discharge into the channel;

• Mitigate temporary impacts to habitat;

• Implement concrete wash-out protocols; and

• A void spills and leaks from machinery and heavy equipment.


The District also proposes to implement the following minimization measures that are specific to tidewater gobies:

• To minimize effects to tidewater goby eggs, the District will not install the cofferdam during the peak breeding seasons for tidewater gobies, which are late spring through early summer (May through June), and late summer through early fall (September through October).

• Block netting will be used to exclude tidewater gobies and other fish from the work area.

• A Service-approved biologist will be present during and after the dewatering to relocate tidewater gobies that enter the work area prior to construction.

• Surface water pump intakes will be completely screened with wire mesh less than 0.25 inch to prevent tidewater gobies from entering the pump system.

Furthermore, prior to dewatering activities between the Ventura County Railroad and the south project terminus, the District will install or use existing monitoring wells to verify the direction of groundwater movement at the time of dewatering. If it is determined that there is a potential for groundwater migration at the site, the District will install and operate five injection wells. Injection of water into the shallow aquifer at the beach parking area between the J Street Drain and the Halaco Site would minimize the migration of contaminated groundwater from beneath the Halaco Site.

ANALYTICAL FRAMEWORK FOR THE JEOPARDY AND ADVERSE MODIFICATION DETERMINATIONS

Jeopardy Determination The jeopardy analysis in this biological opinion relies on four components: (1) the Status of the Species, which evaluates the range-wide condition of tidewater gobies and the factors responsible for that condition, and their survival and recovery needs; (2) the Environmental Baseline, which evaluates the condition of tidewater gobies in the action area, the factors responsible for that condition, and the relationship of the action area to the survival and recovery of this species; (3) the Effects of the Action, which determines the direct and indirect impacts of the proposed Federal action and the effects of any interrelated or interdependent activities on tidewater gobies; and (4) the Cumulative Effects, which evaluates the effects of future, nonFederal activities in the action area on tidewater gobies.

In accordance with policy and regulation, the jeopardy determination is made by evaluating the effects of the proposed Federal action in the context of the current status of tidewater gobies, taking into account any cumulative effects, to determine if implementation of the proposed action is likely to cause an appreciable reduction in the likelihood of both the survival and recovery of tidewater gobies in the wild by reducing the reproduction, numbers, or distribution of the species.

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The jeopardy analysis in this biological opinion places an emphasis on consideration of the range-wide survival and recovery needs of tidewater gobies and the role of the action area in its survival and recovery, as the context for evaluating the significance of the effects of the proposed Federal action, taken together with cumulative effects, for purposes of making the jeopardy determination.

Adverse Modification Determination This biological opinion does not rely on the regulatory definition of "destruction or adverse modification" of critical habitat at 50 CFR 402.02. Instead, we rely on the statutory provisions of the Act to complete the following analysis with respect to critical habitat.

In accordance with policy and regulation, the adverse modification analysis in this biological opinion relies on four components: (1) the Status of Critical Habitat, which evaluates the rangewide condition of designated critical habitat for tidewater gobies, in terms of primary constituent elements (PCEs), the factors responsible for that condition, and the intended recovery function of the critical habitat overall ; (2) the Environmental Baseline, which evaluates the condition of the critical habitat in the action area, the factors responsible for that condition, and the recovery role of the critical habitat in the action area; (3) the Effects of the Action, which determines the direct and indirect impacts of the proposed Federal action and the effects of any interrelated and interdependent activities on the PC Es and how that will influence the recovery role of the affected critical habitat unit; and (4) Cumulative Effects, which evaluates the effects of future non-Federal activities in the action area on the PCEs and how that will influence the recovery role of the affected critical habitat unit.

For purposes of the adverse modification determination, the effects of the proposed Federal action on the critical habitat of tidewater go bi es, are evaluated in the context of the range-wide condition of the critical habitat, taking into account any cumulative effects, to determine if the critical habitat range-wide would remain functional (or would retain the current ability for the PCEs to be functionally established in areas of currently unsuitable but capable habitat) to serve its intended recovery role for tidewater gobies .

The analysis in this biological opinion places an emphasis on using the intended range-wide recovery function of critical habitat for tidewater gobies and the role of the action area relative to that intended function as the context for evaluating the significance of the effects of the proposed Federal action, taken together with cumulative effects, for purposes of making the adverse modification determination.

STATUS OF THE SPECIES

Tidewater Goby Tidewater gobies were listed as endangered on March 7, 1994 (59 Federal Register (FR) 5494). On June 24, 1999, the Service proposed to remove the populations occurring north of Orange County, California, from the endangered species list (64 FR 33816). In November 2002, the Service withdrew this proposed delisting rule and determined it appropriate to retain the


tidewater goby's listing as endangered throughout its range (67 FR 67803). A recovery plan for tidewater gobies was completed on December 12, 2005 (Service 2005). A 5-Year Review for tidewater gobies was completed in September 2007 (Service 2007). Detailed information on the biology of tidewater gobies can be found in Wang (1982), Irwin and Seltz (1984), Swift et al. (1989), Worcester (1992), and Swenson (1995); much of the information from this account was taken from these sources.

Tidewater gobies are endemic to California and typically inhabits coastal lagoons, estuaries, and marshes, preferring relatively low salinities of approximately 12 parts per thousand (ppt). Tidewater goby habitat is characterized by brackish estuaries, lagoons, and lower stream reaches where the water is fairly still but not stagnant. They tend to be found in the upstream portions of lagoons. Tidewater gobies can withstand a range of habitat conditions and have been documented in waters with salinity levels that range from 0 to 41 ppt, temperatures from 46 to 77 degrees Fahrenheit, and depths from approximately 10 inches to 6.5 feet.

Tidewater gobies are primarily an annual species in central and southern California, although some variation in life history has been observed. If reproductive output during a single season fails, few (if any) tidewater gobies survive into the next year. Reproduction typically peaks from late April or May to July and can continue into November or December depending on the seasonal temperature and amount of rainfall. Males begin the breeding ritual by digging burrows (3 to 4 inches deep) in clean, coarse sand of open areas. Females then deposit eggs into the burrows, averaging 400 eggs per spawning effort. Males remain in the burrows to guard the eggs. They frequently forego feeding, which may contribute to the mid-summer mortality observed in some populations. Within 9 to 10 days, larvae emerge and are approximately 0.20 to 0.27 inch in length. Tidewater gobies live in vegetated areas in the lagoon until they are 0.60 to 0.70 inch long. When they reach this life stage, they become substrate-oriented, spending the majority ohime on the bottom rather than in the water column. Both males and females can breed more than once in a season, with a lifetime reproductive potential of 3 to 12 spawning events. Vegetation is critical for over-wintering tidewater gobies because it provides refuge from high water flows.

Tidewater gobies feed on small invertebrates, including mysids, amphipods, ostracods, snails, aquatic insect larvae, and particularly chironomid larvae. Tidewater gobies of less than 0.30 inch in length probably feed on unicellular phytoplankton or zooplankton, similar to many other early stage larval fishes.

Historically, tidewater gobies occurred in at least 135 California coastal lagoons and estuaries from Tillas Slough near the Oregon border south to Agua Hedionda Lagoon in northern San Diego County. The southern extent of its distribution has been reduced by approximately 8 miles. The species is currently known to occur in about 112 locations, although the number of sites fluctuates with climatic conditions. Currently, the most stable populations are in lagoons and estuaries of intermediate size (5 to 124 acres) that are relatively unaffected by human activities. Six regional clades based on morphological differences (Ahnelt et. al. 2004) that are


supported by genetic work done by Dawson et al. (2001) have been used to define recovery units for tidewater gobies (Service 2005). The recovery plan describes 26 recovery sub-units for tidewater gobies (Service 2005).

Tidewater gobies enter the marine environment when sandbars are breached during storm events. The species ' tolerance of high salinities (up to 60 ppt) for short periods of time enables it to withstand marine environment conditions where salinities are approximately 35 ppt, thereby allowing the species to re-establish or colonize lagoons and estuaries following flood events. However, genetic studies indicate that individual populations rarely have contact with other populations so natural recolonization may be rare. In Santa Barbara County during the fall of 1994, tidewater gobies were reported as common in the Santa Ynez River 4 miles upstream from the lagoon (Swift et al. 1997); however, by January 1995, they were absent at the upstream sites. Tidewater gobies that are found upstream of lagoons in summer and fall tend to be juveniles. The highest densities of tidewater gobies are typically present in the fall.

Tidewater Goby Critical Habitat We originally designated critical habitat for tidewater gobies on November 20, 2000 (65 FR 69693). In January 2008, we finalized a revised designation of critical habitat (73 FR 5920). On October 19, 2011, another revision to critical habitat was proposed (76 FR 64996), and on February 6, 2013, a final rule designating revised critical habitat for tidewater gobies was published (78 FR 8745).

Under the Act and its implementing regulations, we are required to identify the physical and biological feature essential to the conservation of tidewater gobies in areas occupied at the time of listing, focusing on the features ' primary constituent elements. We consider primary constituent elements to be the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species ' life-history processes, are essential to the conservation of the species. The primary constituent element specific to tidewater gobies include:

Persistent, shallow (in the range of approximately 0.3 to 6.6 ft (0.1 to 2 m)), still-to-slow-moving lagoons, estuaries, and coastal streams with salinity up to 12 ppt, which provide adequate space for normal behavior and individual and population growth that contain one or more of the following:

• Substrates (e.g. , sand, silt, mud) suitable for the construction of burrows for reproduction;

• Submerged and emergent aquatic vegetation, such as Potamogeton pectinatus, Ruppia maritime, Typha latifola, and Scirpus spp., that provides protection from predators and high flow events; or

• Presence of a sandbar(s) across the mouth of a lagoon or estuary during the late spring, summer, and fall that closes or partially closes the lagoon or estuary, thereby providing relatively stable water levels and salinity.


In total, approximately 12, 156 acres fall within the boundaries of the 2013 final revised critical habitat designation. The revised critical habitat is located in Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, and San Diego Counties, California.

Recovery Plan for the Tidewater Goby The goal of the tidewater go by recovery plan is to conserve and recover the tidewater go by throughout its range by managing threats and perpetuating viable metapopulations within each recovery unit while maintaining morphological and genetic adaptations to regional and local environmental conditions. The decline of tidewater gobies is attributed primarily to habitat loss or degradation resulting from urban, agricultural, and industrial development in and around coastal wetlands. The recovery plan identifies 6 recovery units: North Coast Unit, Greater Bay Unit, Central Coast Unit, Conception Unit, Los AngelesNentura Unit, and South Coast Unit.

The recovery plan specifies that tidewater gobies may be considered for downlisting when:

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1. Specific threats to each metapopulation (e.g., coastal development, upstream diversion, channelization of rivers and streams, etc.) have been addressed through the development and implementation of individual management plans that cumulatively cover the full range of the species.

2. A metapopulation viability analysis based on scientifically credible monitoring over a 10-year period indicates that each recovery unit is viable. The target for downlisting is for individual sub-units within each recovery unit to have a 75 percent or better chance of persistence for a minimum of 100 years.

Tidewater gobies may be considered for delisting when downlisting criteria have been met and a metapopulation viability analysis projects that all recovery units are viable and have a 95 percent probability of persistence for 100 years.

5-Year Review for the Tidewater Goby The 5-year review for the tidewater goby, completed in 2007, stated that the recovery plan reflects up-to-date information; however, the 5-year review reconsidered the downlisting and delisting criteria in the recovery plan. The 5-year review stated that other, currently available information on the species may also be used to determine the appropriate listing status of the species under the Act. These include the current number of occupied localities, current laws and regulations that act to protect the species, and our current understanding of threats and their impact on tidewater gobies. The 5-year review recommended that we reclassify tidewater gobies from endangered to threatened because we concluded that the species was not in imminent danger of extinction. The main reason for this recommendation was that the number of localities known to be occupied had more than doubled since listing. The 5-year review also concluded that tidewater gobies may be more resilient in the face of severe drought events than believed at the time of listing. The 5-year review also stated that threats identified at the time of listing had been reduced or were not as serious as thought. Although numerous threats to tidewater gobies


have been identified (e.g., non-native predation and competition, pollution, cattle grazing), information on the degree of impact these threats may have on tidewater gobies is generally lacking. According to the 5-year review, the increase in occupied localities indicated that these threats appeared to not be having a major impact on tidewater gobies.

On May 18, 2010, we received a petition dated May 13, 2010, from The Pacific Legal Foundation, requesting that tidewater gobies be reclassified as threatened under the Act. Included in the petition was reference to the 5-year review of the tidewater goby's status published by the Service in 2007. We published a 90-day finding on January 19, 2011 (76 FR 3069), that stated our conclusion that the petition presented substantial scientific or commercial information indicating that the petitioned action (reclassification of tidewater gobies) may be warranted. We intend to announce a 12-month finding on the petition to reclassify tidewater gobies as threatened under the Act in 2013 .

ENVIRONMENT AL BASELINE

The implementing regulations for section 7(a)(2) define the action area being addressed in a consultation as the area that may be directly or indirectly affected by the proposed action (50 Code of Federal Regulations (CFR) 402.02). This project involves increasing the capacity of the J Street Drain for the purposes of safely conveying water generated by a 100-year flood event. Thus, we are considering the action area for this biological opinion to be the entire reach of the J Street Drain beginning at Redwood Street to 10 yards downstream of the proposed temporary cofferdam. This area encompasses approximately 8.19 acres.

The J Street Drain runs north-to-south, and marks the boundary between the cities of Oxnard and Port Hueneme, and then empties into the Lagoon, contributing freshwater, sediment, nutrients, and urban run-off. The Lagoon empties into the Pacific Ocean at Ormond Beach, in the city of Oxnard, Ventura County. The action area is surrounded mostly by urbanized land and a small amount of disturbed coastal dunes habitat, mud flat, sand beach/sand bar, and open water at its southern terminus. The nearby Halaco Superfund site, located approximately 1,500 feet east of the project site, overlies a groundwater plume impacted primarily by Halaco metals. Approximately 7.9 acres of the action area is concrete channel and the remaining 0.29 acre is existing riprap rock and soft-bottom channel.

Tidewater Goby In Ormond Lagoon, the available tidewater goby habitat encompasses approximately 0.7 to 2.5 acres and has a hydrological connection with the Oxnard Industrial Drain and J Street Drain. Tidewater gobies were first collected here in 1993 and then were observed again in 1998, 2004, 2005, 2006, 2008, and 2011. In 2005 and 2006, the District conducted 215 seine hauls in the JStreet Drain within its lowermost reach, in order to relocate tidewater gobies out of their project area and captured and released a total of 4,437 individuals (Mulder and Swift 2007). Tidewater gobies were the most abundant species captured followed by mosquitofish (Gambusia sp.), sailfin mollies (Poecilia latipinna), and crayfish (Orconectes sp.) (Mulder and Swift 2007). In 2011 the Environmental Protection Agency detected abundant tidewater gobies in Ormond


Lagoon during sampling for the remedial investigation of the Halaco Superfund Site, further confirming the species' presence in this location.

On November 18, 2013, Service-approved biologist Joel Mulder captured and relocated approximately 4,800 adult tidewater gobies from the upstream-most 900 feet of the J Street Drain to the downstream Ormond Lagoon. Prior to capturing the tidewater gobies, the District installed blocking nets and a coffer dam, and dewatered the work area. In the process of dewatering, a single tidewater go by was stranded in the sediment and died of asphyxiation. Substantial flows from rainfall on November 20 and 21, 2013 , caused the coffer dam and downstream blocking net to fail. Consequently, upon inspection of the site on November 21, 2013, two tidewater gobies were discovered entangled and dead in the dislodged blocking net.

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Because the bladder dam diversion and blocking nets were dislodged by a rainfall event on November 20 and 21, 2013, tidewater water gobies likely re-entered the work area. Furthermore, during the installation of the bladder dam diversion and subsequent dewatering of the work area, the District discovered much more water and sediment in the upper area of the J Street Drain. These unanticipated conditions are likely due to the lack of sufficient rainfall that would otherwise cause the Ormond Lagoon to naturally breach in the late fall and winter months. Consequently, water has backed up in the lagoon and into the J Street Drain (i.e., the work area) and potentially created suitable breeding habitat in those portions of the J Street Drain where sediment has accumulated and the water is deep enough. Therefore, all age classes of tidewater gobies, including eggs, can be expected to occur in the work area.

Tidewater Goby Critical Habitat The action area for the project is within critical habitat unit VEN-3 J Street Drain-Ormond Lagoon. On an intermittent basis, VEN-3 possesses a sandbar across the mouth of the lagoon or estuary during the late spring, summer, and fall that closes or partially closes the lagoon or estuary and thereby provides relatively stable conditions (PCE 1 c ). The PCE 1 a and 1 b occur throughout the unit, although their precise location during any particular time period may change in response to seasonal fluctuations in precipitation and tidal inundation. Portions of this unit are owned by the City of Oxnard and the State of California, respectively, and the remainder is privately owned. VEN-3 likely harbors a source population for this region. By providing this function, this unit supports the recovery of the tidewater go by population along this portion of the coast and helps facilitate colonization of currently unoccupied locations.

Recovery of the Tidewater Go by The final recovery plan for tidewater gobies subdivides the geographic distribution of tidewater gobies into six recovery units, encompassing a total of 26 sub-units defined according to genetic differentiation and geomorphology. Ormond Lagoon is included the Los AngelesNentura Recovery Unit. The Los AngelesNentura Recovery Unit is not divided into sub-units and extends from the steep region of Seacliff, Ventura County to the Palos Verdes Peninsula, Los Angeles County. Primary tasks for this recovery unit as recommended in the recovery plan include: (1) population monitoring; (2) substantiate Sub-Units based on genetic studies; and


(3) consider recolonization if there is a 25 percent reduction in the number of inhabited locations. The 5-year review does not specify the recovery function of the Ormond Lagoon for tidewater go bi es.

EFFECTS OF THE ACTION

Tidewater Goby Dewatering activities may result in the death of any tidewater gobies in the dewatered area due to stranding resulting in desiccation, suffocation, or opportunistic predation. To minimize stranding the District has proposed to relocate all tidewater gobies out of areas to be dewatered. Tidewater gobies may be injured or killed during relocation activities, from mishandling, physiological stress, or from capture and relocation equipment. To minimize these potential effects the District proposes to use personnel with experience relocating tidewater gobies and follow guidelines in the Service's tidewater goby survey protocol. However, the potential exists that some tidewater gobies may not be located or may still be killed or injured during the capture and relocation procedures. Furthermore, tidewater gobies may be breeding during the proposed project, and any eggs located within the dewatering area would not be detectable. These eggs may be injured or killed during the proposed project. As mentioned previously, approximately 4,800 tidewater gobies were captured and relocated during the first attempt to commence construction activities. Even though 4,800 tidewater gobies were captured and relocated, only three dead tidewater go bi es were detected as a result of project activities suggesting the District's minimization measures are effective.

Sedimentation that would occur during construction activities may result in tidewater goby injury, death, and lowered breeding success. Sediment may affect tidewater gobies by impairing the efficiency of their gill filaments and exposing them to higher salinities and/or predation as they flee downstream. Direct effects of sedimentation include mortality, reduced physiological function, and burrow smothering. Indirect effects of sedimentation include potential alteration to the food web which could create cascading effects to higher trophic levels. A reduction in phytoplankton can result from increased turbidity, which can thereafter reduce zooplankton, in turn reducing benthic macroinvertebrates, and thus reduce prey available to tidewater gobies (Henley et al. 2000). Effects resulting from the proposed project would be minimized by the District ' s proposed implementation of standard BMPs for the project, which include measures to minimize erosion and sedimentation.

Unaware workers may find it helpful to the project to breach the sand bar across Ormond Lagoon because it may be the most effective way to dewater the work area. Artificial breaching is known to result in the death of substantial numbers of individual tidewater gobies as witnessed by Chris Dellith of my staff at the Santa Clara River estuary (Chris Delli th pers. obs. September 17, 2010).

Construction equipment and materials that have the potential to contribute pollutants to storm water discharges include vehicle fluids (e.g., oil, grease, petroleum, coolants, etc.), raw landscaping materials and wastes (e.g. , plant materials, etc.), and general litter. These materials

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may injure or kill tidewater gobies. The release of these materials into tidewater go by habitats would be minimized by the implementation of the general BMPs, which includes measures to minimize or avoid the release of contaminants into tidewater go by habitat.

Tidewater Goby Critical Habitat

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We expect that the principal adverse effects to habitat associated with the proposed activities would be disturbance to the substrate and sedimentation. The Corps' and the District's measures to control sedimentation should help avoid any changes to the primary constituent elements. However, because the modification of the J Street Drain involves increasing its capacity to safely convey a 100-year flood, we expect a decrease in flow velocity at its discharge point in Ormond Lagoon. A reduction in flow velocity could create more stable conditions for tidewater gobies in Ormond Lagoon by reducing the pressure of the discharge and reducing turbulence and scour in the Lagoon. Therefore, effects to tidewater goby critical habitat should be temporary and periodic. We do not anticipate any permanent or long-term adverse effects to critical habitat for tidewater go bi es as a result of the proposed action.

Furthermore, the natural direction of groundwater flow beneath the western portion of the Halaco Superfund site is toward Mc Wane Boulevard. As a result of the dewatering of the project, contaminated groundwater flow from the Halaco site could be redirected into the project area. However, the District proposes to use existing and new ground water monitoring wells. If the contaminated water is detected moving towards the project area, the District would inject potable water into the ground to serve as a hydraulic head, which should stop the movement of the contaminated groundwater into the project area.

Recovery of the Tidewater Go by The goal of the tidewater go by recovery plan is to conserve and recover tidewater gobies throughout its range by managing threats and perpetuating viable metapopulations within each recovery unit while maintaining morphological and genetic adaptations to regional and local environmental conditions. We do not expect the modification of the J Street Drain to substantially affect the conservation of tidewater gobies within the Los AngelesNentura Recovery Unit, in terms of the recovery strategy described in the recovery plan because:

1. The tidewater go by recovery plan emphasizes the importance of the conservation of population units rather than individual fish, and the effects of the modification of the J Street Drain are not expected to cause population-level declines in Ormond Lagoon; and

2. The modification of the J Street Drain would not adversely affect the metapopulation dynamics between individual populations within the Los AngelesN entura Recovery Unit.

In summary, the proposed action could adversely affect tidewater goby adults, juveniles, and/or eggs that may occur within Ormond Lagoon through capture and relocation, stranding, crushing, and increased sedimentation. These effects will be minimized by the District's implementation of the minimization measures described above, and because the species appears to be abundant in the project area and any losses are likely masked by prolific breeding, the effects are not


anticipated to substantially diminish the reproduction, numbers, or distribution of the species in the wild. Modification of the J Street Drain is not anticipated to compromise the recovery of tidewater gobies for reasons stated above.

CUMULATIVE EFFECTS

Cumulative effects are those impacts of future State and private actions that are reasonably certain to occur in the project area. Future Federal actions would be subject to the consultation requirements established in section 7 of the Act and, therefore, are not considered cumulative to the proposed project. We are unaware of any non-Federal actions that are reasonably certain to occur and are likely to adversely affect tidewater gobies and their critical habitat.

CONCLUSION

After reviewing the current status of tidewater gobies and their critical habitat, the environmental baseline for the action area, the effects of the project activities, and the cumulative effects, it is the Service' s biological opinion that the Corps' authorization of the District's proposed project is not likely to jeopardize the continued existence of the tidewater go by, and is not likely to destroy or adversely modify designated critical habitat for tidewater gobies.

We have reached these conclusions based on the following reasons:

1. The Corps and the District have proposed measures to minimize the potential adverse effects of project activities on tidewater gobies and their critical habitat. These measures have already proven to be effective, as indicated by the capture and relocation of approximately 4,800 tidewater gobies and only 3 deaths resulting from the actions.

2. Any effects on tidewater goby breeding would be temporary, and any individuals lost would likely be replaced in the next breeding season.

3. Based upon what has been observed and reported so far, few tidewater gobies are likely to be killed or injured during project activities, therefore the project is not likely to substantially reduce the species' numbers.

4. The project is not likely to diminish the ability of the species to persist in Ormond Lagoon, therefore the project will not reduce the distribution of the species.

5. The primary constituent element of designated critical habitat for tidewater gobies and the conservation function of this critical habitat unit should be retained because the Corps and District have proposed to minimize effects to the primary constituent element by limiting sediment deposition in the Lagoon.


6. Recovery opportunities for tidewater gobies will not be compromised because the proposed project, as modified by the proposed conservation measures, will not substantially diminish the reproduction, numbers, or distribution of the tidewater go by in the wild.

INCIDENTAL TAKE STATEMENT

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Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened wildlife species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement.

The measures described below are non-discretionary, and must be undertaken by the Corps so that they become binding conditions of any grant or permit issued to the District, as appropriate, for the exemption in section 7(o)(2) to apply. The Corps has a continuing duty to regulate the activity covered by this incidental take statement. If the Corps (1) fails to assume and implement the terms and conditions or (2) fails to require the District to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7( o )(2) may lapse. To monitor the impact of incidental take, the Corps or District must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement. [50 CFR 402.14(i)(3)]

Based upon the Effects Analysis, the BMPs, the minimization measures proposed by the Corps and District, and what the District and Corps have already reported during previous activities conducted under the original biological opinion, we anticipate that take from the proposed action will result from individual tidewater gobies being killed or injured by equipment or foot traffic during work in the J Street Drain, entrainment in pumps or stranding during de-watering and diversions, and as a result of capture for relocation purposes. We cannot determine the precise number of tidewater gobies that may be killed or injured as a result of the construction activities in the J Street Drain and Ormond Lagoon authorized by the Corps. Numbers and locations of tidewater gobies within a population vary from month to month. Because the Corps and District have proposed to use minimization measures, and those measures have already proven effective, we anticipate that few tidewater gobies are likely to be killed or injured during this work.


Furthermore, all tidewater gobies found within the action area may be subject to take in the form of capture during relocation efforts. Some tidewater gobies may suffer injury or direct mortality during capture and relocation. Any tidewater gobies, including eggs, that remain in the project area may desiccate as a result of decreasing water levels, be subject to increased predation, be crushed by workers conducting project activities, or be otherwise injured or killed.

Despite our inability to anticipate a precise number of tidewater gobies that would be killed or injured during construction activities, we must determine a reasonable number for the purpose of establishing a limit that would trigger reinitiation of formal consultation. The considerations we used in arriving at that number include: (1) the tidewater goby population can fluctuate greatly in number of individuals; (2) dead or injured individuals are difficult to detect, so that any that are found dead or injured may represent a larger impact to the population; (3) some tidewater gobies may be killed or injured by equipment or foot traffic and during pumping of water for diversions or dewatering; (5) because the number of tidewater gobies in a population can be high, many individuals could be affected without a substantial effect on the population; (6) minimization measures have already been proven effective at avoiding and minimizing adverse effects to the tidewater goby (i.e., only three mortalities observed despite 4,800 tidewater gobies being captured and relocated); and (7) the take level we anticipate must be consistent with the non-jeopardy determination in that it cannot appreciably reduce the numbers reproduction, or distribution of the species. Based upon the scope of the J Street Drain Improvement project, the number of tidewater go bi es observed during the initial project activities, and the effects of the project actions that have occurred already, we have determined that if 200 tidewater gobies are found dead or injured as a result of construction (including entrainment in pumps; including capture and relocation) activities, the actions resulting in take should cease until the Corps reinitiates formal consultation and that process is concluded.

This biological opinion provides an exemption from the prohibition against the taking of listed species, contained in section 9 of the Act, only for the activities described in the Description of the Proposed Action section of this biological opinion. Tidewater gobies may be taken only within the boundaries of the action area as defined in the Environmental Baseline section of this biological opinion.

REASONABLE AND PRUDENT MEASURES

We believe the following reasonable and prudent measures are necessary and appropriate to minimize take of tidewater gobies. These are carried forward from our original biological opinion that addressed the project (8-8-13-F-l):

1. The Corps and District must monitor activities to ensure that the level of incidental take that occurs during project implementation is commensurate with the analysis contained herein.

2. Specific activity restrictions must be implemented to avoid or minimize the effects on tidewater gobies.


3. Authorized biologists must minimize the effects of construction activities on tidewater gobies.

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The Service's evaluation of the effects of the proposed action includes consideration of the measures to minimize the adverse effects of the proposed action on tidewater gobies that were developed by the District and repeated in the Description of the Proposed Action portion of this biological opinion. Any subsequent changes in these measures proposed by the Corps or the District may constitute a modification of the proposed action and may warrant reinitiation of formal consultation, as specified at 50 CFR 402.16. These reasonable and prudent measures are intended to supplement the protective measures that were proposed by the Corps and the District as part of the proposed action.

TERMS AND CONDITIONS

To be exempt from the prohibitions of section 9 of the Act, the Corps must ensure that the District complies with the following terms and conditions, which implement the reasonable and prudent measures. These terms and conditions are non-discretionary and are identical to the terms and conditions provided in the original biological opinion (8-8-13-F-1 ).

The following term and condition implements reasonable and prudent measure 1 :

The District must develop and implement a monitoring plan to determine the level of incidental take of tidewater gobies that result from the proposed project activities . The monitoring plan must include a standardized mechanism for District employees, contractors, permittees, and volunteers to report any observations of dead or injured listed animals to the appropriate Corps and Service offices. The District or Corps must collect information obtained through the monitoring to include in the project completion report to the Service that is required by this incidental take statement and described in the "Reporting Requirements" section below.

The following terms and conditions implement reasonable and prudent measure 2.

2.1 The limits of the construction activities must be clearly marked to prevent construction equipment from entering areas beyond the smallest footprint needed to complete the project. Colored flagging would be appropriate to delineate the project boundaries.

2.2 Vehicles and all construction activities must remain within the defined activity area and use only designated access points and staging areas .

2.3 The work area must be kept clean to avoid attracting predators. All food and trash must be disposed of in closed containers and removed from the project site.

2.4 No pets will be allowed on the construction site.

Antal Szijj (8-8-14-F-3 R) 18

2.5 The Corps and the District must not artificially breach Ormond Lagoon.

2.6 The Corps and the District must implement BMPs to avoid impacts to water quality in Ormond Lagoon, which include fueling and maintaining heavy equipment outside of the beach areas and checking equipment for leaks and spills prior to implementing construction activities.

The following term and condition implements reasonable and prudent measure 3.

Monitoring of tidewater gobies must be conducted only by Service-approved biologists. The District must provide biologists ' qualifications to the Service for review/approval at least 15 days before they are to begin work.

REPORTING REQUIREMENTS

Pursuant to 50 CFR 402.14(i)(3), the Corps or the District must submit an annual project report to the Service 's Ventura Fish and Wildlife Office (2493 P01iola Road, Suite B; Ventura, California 93003). The reports must include: (1) a table documenting the number of tidewater gobies observed, killed, or injured, during the subject project implementation; (2) a summary of how the terms and conditions of this biological opinion and the protective measures proposed by the Corps and the District worked; and (3) any suggestions of how these measures could be revised to improve conservation of tidewater gobies while facilitating compliance with the Act. This information will assist the Service in evaluating future actions for the conservation of tidewater gobies. Reports must be submitted to the Service ' s Ventura Fish and Wildlife Office by March of each calendar year the project is being implemented.

DISPOSITION OF DEAD OR INJURED SPECIMENS

As part of this incidental take statement and pursuant to 50 CFR 402.14(i)(l)(v), upon locating a dead or injured tidewater go by, initial notification within three (3) working days of its finding must be made by telephone and in writing to the Ventura Fish and Wildlife Office (805-644-1766). The report must include the date, time, location of the carcass, a photograph, cause of death or injury, if known, and any other pertinent information.

Care must be taken in handling injured animals to ensure effective treatment and care, and in handling dead specimens to preserve biological material in the best possible state. Injured animals must be transported to a qualified veterinarian. Should any treated tidewater gobies survive, the Service should be contacted regarding the final disposition of the animals. The Service should be contacted to determine the appropriate deposition location for any dead specimens that are identified.

Antal Szijj (8-8-14-F-JR) 19

CONS ERV A TI ON RECOMMEND A TIO NS

Section 7(a)(l) of the Act directs Federal agencies to use their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information.

• We recommend that any non-native predators of tidewater gobies be permanently removed from the wild if they can be captured while monitoring project activities. Anyone conducting such removals should be in compliance with the California Fish and Wildlife Code.

• The Corps should conduct studies to increase our understanding of the population dynamics of tidewater go bi es in the project region. Such studies could include developing a metapopulation viability analysis. This type of research and the data obtained could greatly assist the Service and the Corps in future consultations within tidewater goby habitat.

The Service requests notification of the implementation of any conservation recommendations so we may be kept informed of actions minimizing or avoiding adverse effects or benefitting listed species or their habitats.

REINITIATION NOTICE

This concludes formal consultation on the Corps' authorization of the District's proposal to modify the J Street Drain. As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or ( 4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, the exemption issued pursuant to section 7(o)(2) will have lapsed and any further take would be a violation of section 4(d) or 9. Consequently, we recommend that any operations causing such take cease pending reinitiation.

If you have any questions regarding this consultation, please contact Chris Delli th of my staff at (805) 644-1766, extension 227.

LITERATURE CITED

Ahnelt H., J. Goschl, M.N. Dawson, and D.K. Jacobs. 2004. Geographical variation in the ephalic lateral line canals of Eucyclogobius newberryi (Teleostei, Gobiidae) and its comparison with molecular phylogeography. Folia Zoologica 53(4):385-398.

Dawson, M.N., J.L. Stanton, and D.K. Jacobs. 2001. Phylogeography of the tidewater go by, Eucyclogobius newberryi (Teleostei, Gobiidae ), in coastal California. Evolution 55(6):1167-1179.

Henley, W.F. , M.A. Patterson, R.J. Neves, and A. Dennis Lemly. 2000. Effects of sedimentation and turbidity on lotic food webs: A concise review for natural resource managers. Reviews in Fisheries Science. 8(2):125-139.

Irwin, J.P. and D.L. Soltz. 1984. The natural history of the tidewater goby, Eucyclogobius newberry i, in the San Antonio and Schuman Creek system, Santa Barbara County, California. U.S. Fish and Wildlife Service, Sacramento Endangered Species Office Contract No. 11310-0215-2.

Mulder, J. and C. Swift. 2007. Hueneme pump station reconstruction project: Construction monitoring and fish relocation report. ENTRIX, Ventura, California. Prepared for the Ventura County Watershed Protection District.

Swenson, R.O. 1995. The reproductive behavior and ecology of the tidewater goby Eucyclogobius newberryi (Pisces: Gobiidae). Ph.D. dissertation. University of California, Berkeley, California.

Swift, C.C, J.L. Nelson, C. Maslow, and T. Stein. 1989. Biology and distribution of the tidewater go by, Eucyclogobius newberryi (Pisces, Gobiidae) of California. Contributions in Science. Number 404.

Swift, C.C., P. Duangsitti, C. Clemente, K. Hasserd, and L. Valle. 1997. Biology and distribution of the tidewater goby, Eucyclogobius newberryi, on Vandenberg Air Force Base, Santa Barbara County, California. Final report, USNBS Cooperative Agreement 1445-007-94-8129.

U.S . Fish and Wildlife Service. 2005 . Recovery plan for the tidewater goby (Eucyclogobius newberryi) . U.S. Fish and Wildlife Service, Portland, Oregon. vi + 199pp.

U.S. Fish and Wildlife Service. 2007. Tidewater goby (Eucyclogobius newberryi) 5-year review summary and evaluation. Ventura Fish and Wildlife Office, Ventura, California.

Wang, J.C.S. 1982. Early life history and protection of the tidewater goby Eucyclogobius newberryi in the rodeo lagoon of the Golden Gate National Recreation Area. Technical Report No. 7. National Park Service, Resources Study Unit.

Worcester, K.R. 1992. Habitat utilization in a central California coastal lagoon by the tidewater goby (Eucyclogobius newberryi). Masters thesis, California Polytechnic State University, San Luis Obispo, California.

united states department of the interior - cci dev of the cofferdam, block nets would be installed...

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