Permit Application Public Notices

The United States Congress authorizes the U.S. Army Corps of Engineers to regulate activities that may impact wetlands and waters of the United States. This authority is granted and defined under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act.

Public involvement is a key element of the Corps’ permit review process. During an application review, the Corps considers the views of other federal, state and local agencies, Native American tribes, interest groups, and the general public. The results of this careful public interest review are fair and equitable decisions that allow reasonable use of private property, infrastructure development, and growth of the economy, while offsetting the authorized impacts to the waters of the United States.

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NWP-2019-111-1

Published Aug. 6, 2019
Expiration date: 9/4/2019

PUBLIC NOTICE
Application for Permit

Issue Date: August 5, 2019
Expiration Date: September 4, 2019
US Army Corps of Engineers No: NWP-2019-111-1
Oregon Department of State Lands No: 61812

30-Day Notice
Interested parties are hereby notified the U.S. Army Corps of Engineers, Portland District (Corps) has received an application for a Department of the Army permit for certain work in waters of the United States, as described below and shown on the attached plans. The Corps is soliciting comments on the proposed work.
    
Applicant: Johnson Creek Watershed Council
Attention: Chuck Lobdell
4033 SE Woodstock Blvd.
Portland, Oregon 97202
E-mail: chuck@jcwc.org
Telephone: (503) 652-7477 ext. 104

Location: The project site is located at 16600 SE Foster Road in Gresham, Multnomah County, Oregon. The site is in Section 19, Township 1 South, Range 3 East. Latitude and Longitude: 45.469 North, 122.493 West

Waterway: The work is located in Kelly Creek at river mile 0.3. The location of the ordinary high water mark (OHWM) shown on the project drawings has not yet been verified by the Corps. If the Corps determines the boundaries of the waters are substantially inaccurate a new public notice may be published.

Project Purpose: The applicant’s stated purpose is to restore fish passage to Kelly Creek and its tributaries and relocate a water intake. 

Project Description: The proposed project is the Kelly Creek Fish Passage Restoration project. The work would remove up to 396 cubic yards of stream bed substrate, concrete, and steel from 0.11 acres below the OHWM of Kelly Creek (249 linear feet). The work would also temporarily place up to 51 cubic yards of sandbags over 510 square feet below the OHWM of the creek for dewatering and water diversion. The work would permanently place 263 cubic yards of boulders, cobble, and gravel over 1,590 square feet below the OHWM of the creek for stream restoration activities. 

The project would remove a 5-foot high in-stream diversion dam which diverts water from Kelly Creek to a pond. Fine sediment accumulated upstream of the dam would be removed from the channel and placed in uplands. The project would construct an engineered riffle to restore and stabilize the channel at the location of the existing diversion dam. The roughened channel would mimic a riffle constructed at a 1.7% grade. It would be constructed of a graded mix of natural stream substrate referred to as Engineered Streambed Material (ESM). ESM would consist of a well graded mix of boulders, cobbles, and gravels with fines jetted in to produce a hard pan surface and prevent stream water from flowing subsurface through these features. The rock gradation would be sized to resist erosion and scouring during flooding. Rock removed from the dam area would be reused in the engineered riffle. Clean material from an offsite location would also be used in construction.

The project would install a stilling basin for a submersible pump to service the existing water right. A submersible pump would be installed into a stilling well that would be embedded into the left bank of the channel. Water would enter the stilling well though a screened intake pipe that would extend into the channel. A 12-inch diameter pipe would extend into the channel for water intake. The project would install a V-weir and engineered riffle to maintain a small pool at the new diversion pond and stabilize the channel. The pool would minimize sedimentation of the intake pipe on the submersible pump and maintain enough water to operate the pump continuously when necessary.

Prior to the start of construction, the work areas would be surveyed for fish and dewatered. Dewatering would occur in two areas. For the upstream work, sandbags would be placed 100 feet upstream of the existing diversion dam to create a coffer dam for dewatering. Water from the upstream coffer dam would be pumped around the work area to a downstream entry point. For the downstream work, sandbags would be placed in the stream above the location of the V-weir. Water would be pumped downstream around the work area. 

Mitigation: The applicant proposes to avoid and minimize impacts from the project by conducting all work from the uplands and top of bank. The work would not disturb riparian vegetation at the site. Disturbed soils along the bank would be seeded after construction. Best management practices would be used during construction to ensure the site is dewatered and water flows would be directed around the work area. The applicant did not propose compensatory mitigation in the permit application. The Corps will determine the type and amount of compensatory mitigation necessary to offset environmental losses from the proposed project.

Drawings: Nine (9) drawings are attached and labeled Corps No. NWP-2019-111-1. Copies of this public notice, which have been mailed or otherwise physically distributed, feature project drawings in black and white. The electronic version features those drawings in color, which we think more accurately illustrates the proposed project. To access the electronic version of this public notice, go to the Portland District Regulatory website at http://www.nwp.usace.army.mil/Missions/Regulatory and select Regulatory Public Notices from the list of Regulatory pages.

Authority: The proposed project will be evaluated under the following:

Section 404, Clean Water Act (33 U.S.C. 1344), for discharge of dredged or fill material into waters of the United States.

Clean Water Act Section 404(b)(1) Guidelines: The described discharge will be evaluated for compliance with guidelines promulgated by the U.S. Environmental 

Protection Agency under authority of Section 404(b)(1) of the Clean Water Act. The 404(b)(1) Guidelines are the substantive criteria used in evaluating discharges of dredged or fill material into waters of the United States. The source of the fill material would be both offsite and onsite. Onsite fill would consist of the reuse of boulders. Offsite material would be from a quarry. Should a permit be issued, the Corps will evaluate the fill material source (i.e., borrow site) prior to the start of construction.

Water Quality Certification: Section 401 of the Clean Water Act (33 U.S.C. 1341) requires applicants to obtain a water quality certification for proposed discharges into waters of the United States. A permit for the described work will not be issued until certification has been issued or is waived from the certifying state. Attached is the state's notice for a water quality certification.

Endangered Species: Section 7 of the Endangered Species Act (ESA) (16 U.S.C. 1536) requires federal agencies to consult with the National Marine Fisheries Service (NMFS) and/or U.S. Fish and Wildlife Service (USFWS) on all actions that may affect a species listed (or proposed for listing) under the ESA as threatened or endangered or that may adversely modify designated critical habitat. The Corps’ preliminary review indicates the described activity may affect an endangered or threatened species or designated critical habitat. The Corps will initiate consultation under Section 7 of the ESA. The Corps will complete the required consultation prior to finalizing a permit decision.

Essential Fish Habitat: Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) as amended (16 U.S.C. 1855), requires Federal agencies to consult with the NMFS on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). The Corps’ preliminary review indicates the described activity would adversely affect EFH at the project location or in the vicinity. The Corps will initiate consultation under Section 305(b)(2) of the MSA. The Corps will complete the required consultation prior to finalizing a permit decision.

Historic Properties/Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended (54 U.S.C. 306108), requires Federal agencies to consult with the appropriate State and/or Tribal Historic Preservation Officer to take into account the effects of actions they undertake or permit on historic properties listed in or eligible for listing in the National Register of Historic Places. The Corps’ preliminary review indicates to the best of our knowledge, the described activity is not located on property registered or eligible for registration in the latest published version of the National Register of Historic Places. At this time the Corps is unaware of any cultural resource surveys of the project area. 

This notice has been provided to the State Historic Preservation Office (SHPO), interested Native American Indian Tribes, and other interested parties. If you have information pertaining to cultural resources within the permit area, please provide this information to the Corps’ project manager identified at the end of this notice to assist in a complete evaluation of potential effects.

State and Local Authorizations: The applicant will need to obtain approval from Multnomah County, the Oregon Department of State Lands, and the Oregon Department of Environmental Quality. 

Public Hearing: Any person may request in writing within the comment period specified in this notice that a public hearing be held to consider this application. Requests for public hearings shall state with particularity the reasons for holding a public hearing.

Evaluation: The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts, of the described activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit, which reasonably may be expected to accrue from the described activity, must be balanced against its reasonably foreseeable detriments. All factors, which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people.

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

Submitting Comments: Interested parties are invited to provide comments on the proposed project. Comments may be submitted by conventional mail or e-mail. All comments received will be considered in determining whether authorizing the work would be contrary to the public interest. 

Either conventional mail or e-mail comments must include the Corps reference number as shown on page 1 and include the commenter’s name and address. In order to be accepted, e-mail comments must originate from the author’s e-mail account and must include on the subject line of the e-mail message the Corps reference number. All comments received will become part of the administrative record and are subject to public release under the Freedom of Information Act including any personally identifiable information such as names, phone numbers, and addresses.

Additional information about the proposed project may be obtained from the Corps Project Manager listed below. All comments, whether by conventional mail or e-mail, must be received no later than the expiration date of this public notice to ensure 

consideration. Comments should be submitted to the following mailing address or 
e-mail address:

        U.S. Army Corps of Engineers
        Regulatory Branch
        Ms. Melody White
        P.O. 2946
        Portland, Oregon 97208-2946
        E-mail: Melody.J.White@usace.army.mil
        Telephone: (503) 808-4385

PUBLIC NOTICE
Oregon Department of Environmental Quality (DEQ)
Water Quality 401 Certification

Notice Issued: August 5, 2019
Written Comments Due: September 4, 2019

Corps of Engineers No: NWP-2019-111-1
Oregon Department of State Lands No: 61812    

WHO IS THE APPLICANT: Johnson Creek Watershed Council

LOCATION OF CERTIFICATION ACTIVITY: See attached U.S. Army Corps of Engineers public notice.

WHAT IS PROPOSED: See attached U.S. Army Corps of Engineers public notice on the proposed project.

NEED FOR CERTIFICATION: Section 401 of the Federal Clean Water Act requires applicants for Federal permits or licenses to provide the Federal agency a water quality certification from the State of Oregon if the proposed activity may result in a discharge to waters of the state.

DESCRIPTION OF DISCHARGES: See attached U.S. Army Corps of Engineers public notice on the proposed project.

WHERE TO FIND DOCUMENTS: Documents and materials related to water quality issues as a result of the proposal are available for examination and copying at Oregon Department of Environmental Quality, 401 Water Quality Permit Coordinator, Northwest Region, 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232. Other project materials are available by contacting the Corps per the attached public notice.

Scheduling an appointment will ensure that water quality documents are readily accessible during your visit. To schedule an appointment please call DEQ Water Quality at Northwest Region at (503) 229-5623.

Any questions on the water quality certification process may be addressed to the 401 Permit Coordinator at (503) 229-5623 or toll free within Oregon at (800) 452-4011. People with hearing impairments may call the Oregon Telecommunications Relay Service at (800) 735-2900.

PUBLIC PARTICIPATION:

Public Hearing: Oregon Administrative Rule (OAR) 340-48-0032 (2) states that “The Corps provides public notice of and opportunity to comment on the applications, including the application for certification, provided that the department (DEQ), in its discretion, may provide additional opportunity for public comment, including public hearing.” 

Written comments:
Written comments on project elements related to water quality must be received at the Oregon Department of Environmental Quality by 5 p.m. on the date specified in the upper right section on page one of this notice. Written comments may be emailed or mailed as described below: 

E-mail - 401publiccomments@deq.state.or.us

Mail - Oregon Department of Environmental Quality, Northwest Region
           700 NE Multnomah Street, Suite 600
           Portland, Oregon 97232      
           Attn: 401 Water Quality Permit Coordinator 

WHAT HAPPENS NEXT: DEQ will review and consider all comments received during the public comment period. Following this review, certification of the proposal may be issued as proposed, issued with conditions, or denied. You will be notified of DEQ's final decision if you submit comments during the comment period. Otherwise, if you wish to receive notification, please call or write DEQ at the above address.

ACCESSIBILITY INFORMATION: DEQ can provide documents in an alternate format or in a language other than English upon request. Call DEQ at (800) 452-4011 or e-mail deqinfo@deq.state.or.us.