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-2019-75-2

Portland District
Published Dec. 3, 2021
Expiration date: 1/2/2022

PUBLIC NOTICE
Application for Permit

Issue Date: December 3, 2021
Expiration Date: January 2, 2022
U.S. Army Corps of Engineers No: NWP-2019-75-2

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 drawings. The Corps is soliciting comments on the proposed work.

Applicant: Smith Aurora LLC
Attention: Peter Rempp
4164 Meridian Street, Suite 400
Bellingham, Washington 98226 
Email: Peter.rempp@smithgardens.com
Telephone: (360) 685-52242

Applicant’s Agent: Pacific Habitat Services
Attention: Shawn Eisner
9450 SW Commercial Circle, Suite 180
Wilsonville, Oregon 97070
Email: se@pacifichabitat.com
Telephone: (503) 570-0800

Location: The project site is located at 23150 NE Boones Ferry Road, portions of Tax Lots 300, 400, 500, 600, and all of Tax Lot 700, in Aurora, Marion County, Oregon. The site is in Section 2, Township 4 South, Range 1 West. Latitude and Longitude: 45.2526 North, 122.7749 West.

Waterway: The proposed project occurs within 1.4 acres of palustrine emergent wetland (Wetland A) located within a 26.51 acre site. Wetland A boundaries shown on the project drawings were verified by the Corps under an approved jurisdictional determination (AJD) dated October 15, 2020. 

Project Purpose: The applicant’s stated purpose is to expand an existing plant nursery. 

Project Description: The applicant proposes to discharge up to 15,797 cubic yards (cy) of aggregate, mixed topsoil, and riprap fill material within 1.4 acres of Wetland A to construct a stormwater detention area and a greenhouse building. The applicant would remove approximately 1 foot of topsoil from within Wetland A and relocate it to an upland disposal area. 

Access to the site would be on the west side of the site or from NE Hubbard Cutoff Road. Both access routes would use existing gravel areas to access the site and would not need improvements. The applicant would install construction entrances at the north and southeast extents of the project area and would be maintained throughout construction. 

Construction materials and staging for the new proposed stormwater detention area would be located along the east project boundary. The applicant would stage construction materials for the greenhouse within the existing gravel parking area east and west of the proposed structure. Typical equipment used for construction would include an excavator, backhoe, loader, dump truck, bulldozer, grader, or compactor.

Mitigation: The applicant proposes to avoid and minimize impacts from the project by commencing construction after implementation of an erosion and sediment control plan to minimize onsite and offsite water quality and overall project effects in the area. Erosion controls onsite would include, but are not limited to, sediment fencing, inlet protection, biofilter bag check dam, and straw wattles or compost filter sock. 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 for losses to waters of the U.S. through the purchase of 1.37 bank credits from Garrett Creek. The Corps will determine the type and amount of compensatory mitigation necessary to offset environmental losses from the proposed project.

Drawings: Twelve (12) drawings are attached and labeled Corps No. NWP-2019-75-2. 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 under Regulatory Pages select Permit Application Public Notices.

Additional Information: Approximately 1.4 acres of Wetland A is located within the project area and continues offsite to the south. The northern portion of the drainage swale was graded in 2015. The northern portion of the wetland is confined to the limits of a drainage swale that was graded in 2015. The central-western and southern portions of the wetland have been utilized as horse pasture for decades that ceased in late 2018 or early 2019. The east side of the wetland is within an area that had been managed for hay production until 2018 when site grading for a prior nursery facilities expansion occurred. An irrigation outfall exists at the north end of the drainage swale.

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 Corps will evaluate the fill material source (i.e., borrow site) prior to finalizing a permit decision.

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 not adversely affect EFH at the project location or in its vicinity. The Corps will make a final determination on the need to consult on EFH after receipt of comments from this public notice including any comments provided by the NMFS.

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 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 Marion County Planning Department for Land Use Decision, Oregon Department of Environmental Quality (DEQ) 1200-C program and Oregon Department of State Lands 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
Regulatory Branch
Kinsey M. Friesen 
P.O. Box 2946
Portland, Oregon 97208-2946
Email: kinsey.m.friesen@usace.army.mil
Telephone: (503) 808-4378

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

Notice Issued: December 3, 2021
Written Comments Due: January 2, 2022

Corps of Engineers No: NWP-2019-75-2
Oregon Department of State Lands No: 63528-RF

WHO IS THE APPLICANT: Smith Aurora 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 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.” Additional Section 401 process information is available on DEQ’s webpage (https://www.oregon.gov/deq/wq/wqpermits/Pages/Section-401-Certification.aspx).

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 submitted electronically through Your DEQ Online (https://ordeq-edms-public.govonlinesaas.com/pub/login). For questions regarding account registration, system navigation, or training resources, please visit the Your DEQ Online help webpage (https://www.oregon.gov/deq/Permits/Pages/Your-DEQ-Online-Help.aspx).

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. Public records can be accessed through the Your DEQ Online public records portal webpage 
(https://ordeq-edms-public.govonlinesaas.com/pub/login).

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 deqinfo@deq.state.or.us.