Application for Permit
Issue Date: November 9, 2021
Expiration Date: December 9, 2021
US Army Corps of Engineers No: NWP-2020-443
Oregon Department of State Lands No: 63108-RF
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.
Interested parties are hereby notified that all or a portion of the work as described below and shown on the attached plans was performed without specific authorization from the U.S. Army Corps of Engineers. The Corps’ permit regulations (33 CFR 326.3(e)) allow the District Engineer to accept an after-the-fact permit application to evaluate whether an activity is contrary to the public interest. Based on a preliminary review, the Corps has accepted an after-the-fact permit application for this project. The Corps is soliciting comments on the existing and proposed work.
Applicant: MWSH Boone Road Property LLC.
Attention: Kelley Hamilton
3425 SE Boone Road
Salem, Oregon 97317
Telephone: (503) 373-3191
Applicant’s Agent: Zion Natural Resource Consulting
Attention: Eric Henning
P.O. Box 545
Monmouth, Oregon 97361
Telephone: (503) 881-4171
Location: The project site is approximately 50 acres in size located on Tax Lot 100 and a portion of Tax Lot 200, south of SE Boone Road, in Salem, Marion County, Oregon. The site is in Section 13, Township 8 South, Range 3 West at Latitude and Longitude: 44.8810° North, 122.9903° West.
Waterway: The proposed occurs in 11.7 acres of palustrine emergent wetland and 0.99 acres or 4,864 linear feet of Ditch to East Fork Pringle Creek. The Corps previously completed an Approved Jurisdictional Determination (AJD) for the project site on April 29, 2021. The wetlands and waterways described above were determined to be waters of the U.S. Ditch 1 totals 1,644 linear feet (0.44 acre), Ditch 2 totals 654 linear feet (0.06 acres), Ditch 3 totals 2,065 linear feet (0.36 acre), and Ditch 4 totals 501 linear feet (0.13 acre). Ditch Channel 4 is labeled as part of Ditch Channel 3 in the Corps AJD review area. The ditches are ditched stream channels.
Project Purpose: The applicant’s stated purpose is to construct a retail commercial development and transportation improvement project for City of Salem.
Project Description: The Boone Commercial Development and 36th Avenue Project would discharge up to 54,375 cubic yards (cy) of rock, gravel, and topsoil fill and excavate up to 23,995 cy native soils within the wetlands and waterways described above to complete the 23.6-acre development. The applicant would discharge up to 7,712 cy of permanent fill into 1.41 acres of wetland and up to 975 cy of permanent fill into 0.382 acre of waters for road access and channel relocation.
Ditch Channel 1 runs through the center of the property and flows to Ditch Channels 2 and 3 along the north property boundary. Ditch Channel 3 borders the northeast and east property boundaries along Boones Road and 36th Avenue. The applicant would terminate roadway improvements at each end of Ditch Channel 3. The work would avoid Ditch Channel 4 along the southeast property boundary and Ditch Channel 2 along the northwest property boundary. The applicant would replace Ditch Channel 3 with a new open ditch channel which would be relocated inland of the existing channel to allow for road widening on Boone Road and 36th Avenue.
The applicant would permanently fill approximately 82 linear feet (0.022 acre) of Ditch Channel 1 with 75 cy of clean gravel fill for the installation of a 24-inch culvert crossing to construct a new roadway extending off 36th Avenue, known as 32nd Avenue. The applicant would relocate approximately 2,065 linear feet (0.36 acre) of Ditch Channel 3 by first constructing a new open channel adjacent and inland of the existing channel along Boone Road and 36th Avenue. The applicant would divert surface water flows to the new channel after construction and the existing channel would be permanently filled preventing the need for temporary work area isolation of the existing channel prior to flow diversion to the new channel. The applicant would install three new permanent access driveways along Boones Road, one new culvert at the intersection of Boones Road and 36th Avenue, and one new road extending off 36th Avenue, known as 32nd Avenue within the relocated portion of Ditch Channel 3.
Approximately 1,782 linear feet (0.31 acre) of Ditch Channel 3 would remain open after relocation. Approximately 283 linear feet (0.05 acre) of Ditch Channel 3 would be permanently filled as described above by four culvert (three along Boones Road and one along 36th Avenue) for permanent access and one culvert upgrade (at the intersection of Boones Road and 36th Avenue. The four proposed crossings along the new location of Ditch Channel 3 would result in the permanent fill of approximately 90 linear feet (0.016 acre) of Ditch Channel 3 by discharging up to 75 cy of clean gravel for Culvert #2. Culvert #2 is proposed to be a 5-foot by 2-foot diameter, 90 foot long 4-sided box culvert located parallel to 36th Avenue for construction of the new 32nd Avenue permanent road. The applicant would permanently fill approximately 185 linear feet (0.032 acre) of Ditch Channel 3 by discharging up to 155 cy of clean gravel to construct three 36-inch diameter, 62 foot long culverts along Boone Road. The applicant would permanently discharge approximately 7 cy of clean gravel fill within 8 linear feet (0.002 acre) of Ditch Channel 3 to install Culvert #1, a 5-foot by 2-foot diameter, 95 foot long 4-sided box culvert located at the intersection of Boone Road and 36th Avenue for road improvements.
The applicant would discharge approximately 725 cy of permanent fill into approximately 0.39 acre (16,658 square feet) of Wetland A to construct 32nd Avenue. The applicant would discharge approximately 581 cy of permanent fill in approximately 0.11 acre (4,512 square feet) of Wetland B for the construction of commercial retail buildings. The applicant would discharge approximately 425 cy of permanent fill in approximately 0.11 acre (4,644 square feet) of Wetland E to construct a stormwater detention area. The applicant would discharge approximately 4,764 cy of permanent fill in approximately 0.78 acre (34,303 square feet) of Wetland F to construct 32nd Avenue and commercial retail buildings. The applicant would discharge approximately 167 cy of permanent fill in approximately 0.03 acre (1,197 square feet) of Wetland H to construct 32nd Avenue.
The applicant graded and removed approximately 110 cy of soil from the entire length of Ditch 1 (Tax Lot 200) based on the enforcement actions indicated by Oregon Department of State Lands (DSL) ENF #8201 (September 2019). Portions of Ditch Channel 1 are proposed for permanent impact as part of this application.
Mitigation: The applicant proposes to avoid and minimize impacts from the project developing the project within 23.6 acres of the 50 acre site to avoid approximately 10.19 acre of wetland, 0.06 acre of Ditch Channels 2, and 0.13 acre of Ditch Channel 4 entirely, including no relocation, grading, filling, or flow diversion impacts at these locations. Approximately 654 linear feet of Ditch Channel 2 (0.06 acre) borders the northwest property boundary along Boones Road and approximately 501 linear feet of Ditch Channel 4 (0.13 acre) borders the southeast property boundary. The applicant would implement standard best management practices to avoid and minimize downstream or offsite effects to water quality and the aquatic ecosystem such as utilizing erosion control devices during construction and until permanent stabilization onsite is in place.
The applicant has provided a proposed compensatory wetland mitigation plan to offset losses of waters of the U.S. that may result from the proposed project. The applicant proposes compensatory mitigation in the permit application for the 1.41 acres of wetland and 0.17 acre of waterway through the purchase of 1.58 acres of credits from Mud Slough Mitigation Bank. The Corps will determine the type and amount of compensatory mitigation necessary to offset environmental losses from the proposed project.
Drawings: Nineteen (19) drawings are attached and labeled Corps No. NWP-2020-443. 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.
Additional Information: The project area is located in a rural setting of south Salem that is transitioning to mixed industrial uses. Bonaventure Senior Living Center is located north of the site and industrial developments to the east. The downtown Salem area is located northwest and west of the site. The site has been used for agriculture for more than a century. The majority of the property lies on a broad plain that slopes towards the northeast. Over the past several years, including during the time of the delineation fieldwork, the site has been used to grow alsike clover (Trifolium hybridum). At the southwest end of the property, there is a spring that feeds into a ditch (Ditch Channel 1) that flows northeast to a roadside ditch (Ditch Channel 2 and Ditch Channel 3) at Southeast Boone Road. A spring box is located approximately 20 feet south of the Ditch Channel 1.
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 crushed rock material obtained from commercial sources.
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 (has) initiate(d) 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 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 Oregon State Historic Preservation Office, interested Native American 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 obtain approval from City of Salem Planning Department, Oregon Department of Environmental Quality (DEQ) 1200-C program and Oregon DSL removal/fill program.
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; Native American 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 email. 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 email, 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 email address:
U.S. Army Corps of Engineers
Kinsey M. Friesen
P.O. Box 2946
Portland, Oregon 97208-2946
Telephone: (503) 808-4378
Oregon Department of Environmental Quality (DEQ)
Water Quality 401 Certification
Notice Issued: November 9, 2021
Written Comments Due: December 9, 2021
Corps of Engineers No: NWP-2020-443
Oregon Department of State Lands No: 63108-RF
WHO IS THE APPLICANT: MWSH Boone Road Property LLC.
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 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:
Email - email@example.com
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 email firstname.lastname@example.org.