NWP-2022-75

PUBLIC NOTICE
Application for Permit

Issue Date: February 20, 2024
Expiration Date: March 21, 2024
U.S. Army Corps of Engineers No: NWP-2022-75

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.

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:                    Chris van der Velde    
                                        Hills of Depoe Bay
                                        61240 Skyline Rand Road 
                                        Bend, Oregon 97702
                                        Email: chrisv@velocityusproperties.com
                                        Telephone: (541) 749-8801

Applicant’s Agent:     Taya K. MacLean, MS, PWS 
                                        Parametrix
                                        700 NE Multnomah St, Suite 1000
                                        Portland, Oregon 97232
                                        Email: TMacLean@parametrix.com
                                        Telephone: (503) 416-6193

Location: The project site is located at 1032 N. Highway 101, in Depoe Bay, Lincoln County, Oregon. The site is in Section 5, Township 9 S, Range 11 W. Latitude and Longitude: 44.821216°, -124.063256°.

Waterway: The project site contains a total of 0.514 acre of wetlands; three (3) palustrine forested wetlands: and one (1) palustrine saturated wetland. 

The wetland boundaries shown on the project drawings have not yet been verified by the Corps. If the Corps determines the boundaries of the wetland are substantially inaccurate a new public notice may be published.

Project Purpose: The applicant’s stated purpose is to construct a 56-unit mixed density residential and commercial development in Depoe Bay, Lincoln County, Oregon.

Project Description: 
The proposed work would discharge up to 2,293 cubic yards of fill material within 0.39 acre of wetlands to construction Phases 1 and 2 of a multifamily/commercial development on a 9.77 acre site. The proposed work would fill 0.068 acre of Wetland B, 0.012 acre of Wetland C, 0.044 acre of Wetland D, and 0.243 acre of Wetland A to construct residential housing, a community building, and associated infrastructure such as water, sewer, sidewalks, stormwater treatment and roadways, as well as a recreation area. The remainder of Wetland A (0.51 acre) is outside the project site. Site access would occur from existing roadways and staging would occur adjacent to proposed stormwater detention areas. 

The applicant is requesting after-the-fact authorization for filling 0.012-acre of Wetland A for the construction of a stormwater pond constructed in 2015. 

Mitigation: The applicant proposes to avoid and minimize impacts from the project by utilizing best management practices (BMPs) to minimize erosion and sedimentation. All BMPs would be properly maintained throughout the duration of the project to keep sediments from entering any wetlands and other waterways in the project vicinity. The applicant has provided a proposed compensatory wetland mitigation plan to offset losses of waters of the United States that may result from the proposed project. The applicant proposes to provide compensatory mitigation at a 1:1 ratio for unavoidable wetland impacts through the purchase of 0.13 acre PFO and 0.30 acre of PSS credits from one of the two In-Lieu Fee (ILF) sites, Pixieland and/or Tamara Quays. 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-2022-75. 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: The project includes future phases which are not currently being proposed for construction by the applicant. 

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. The applicant has obtained a Water Quality Certification from DEQ. 

Coastal Zone Management: Section 307(c) of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1456(c), requires non-Federal applicants seeking a federal license or permit to conduct any activity occurring in or affecting the coastal zone to submit a Consistency Certification which indicates the activity conforms with the State’s Coastal Zone Management Program. The applicant believes the proposed project would comply with and be conducted in a manner consistent with the Oregon Ocean and Coastal Management Program. The state’s notice for a consistency certification is attached.

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 may 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 a historic properties investigation has been conducted within the permit area. An investigation for the presence of potentially eligible historic properties is justified and would be required prior to the Corps’ final permit decision.

This notice has been provided to the Oregon State Historic Preservation Office (SHPO), 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 has obtained a Land Use Compatibility Statement from the City of Depoe Bay / Lincoln County Planning Department. The applicant has obtained a Water Quality Certification from DEQ. The applicant has applied for additional governmental authorizations for the project: Removal-Fill Permit from the Department of State Lands (DSL) (DSL No. APP0063692).

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
        Alexandra Holeček 
        211 E. 7th Avenue, Suite 105
        Eugene, Oregon 97401-2763
        Email: Alexandra.Holecek@usace.army.mil
        Telephone: (541) 297-9938

 
PUBLIC NOTICE
OREGON OCEAN AND COASTAL MANAGEMENT PROGRAM
CONSISTENCY CERTIFICATION

Date: February 20, 2024

U.S. Army Corps of Engineers No: Corps No. NWP-2022-75
Oregon Department of State Lands No: APP0063692

NOTIFICATION:
For projects subject to coastal zone review, notice is hereby given that the project is being reviewed by the Department of Land Conservation and Development (DLCD) as provided in Section 307(c) of the Coastal Zone Management Act. The applicant believes that the activities described in the attached materials would comply with and be conducted in a manner consistent with the Oregon Ocean and Coastal Management Program. Project information can be made available for inspection at DLCD's Salem office.

DLCD is hereby soliciting public comments on the proposed project’s consistency with the Oregon Coastal Management Program. Written comments may be submitted to DLCD, 635 Capital Street NE, Suite 150, Salem, Oregon 97301-2540. Comments may also be sent by fax to (503) 378-6033 or by email to coast.permits@dlcd.oregon.gov. All comments must be received by DLCD on or before the comment deadline listed in the accompanying Corps of Engineers’ Public Notice Application for Permit. For further information, you may call DLCD at (503) 373-0050.

REVIEW CRITERIA:
Comments should address consistency with the applicable enforceable policies of the Oregon Coastal Management Program. These enforceable policies are found in the following:

•     Acknowledged Local Comprehensive Plans & Implementing Ordinances
•     Statewide Planning Goals
•     Applicable State Authorities incorporated into the Oregon Coastal Management Program (e.g. Removal-Fill Law, Water Quality Standards, Beach Bill, etc.) as applicable.

A list of specific enforceable policies can be found at the following link:
http://www.oregon.gov/LCD/OCMP/Pages/OCMP_Enforceable-Policies.aspx

INCONSISTENT?
If you believe this project is inconsistent with the Oregon Coastal Management Program, your comments to DLCD should explain why you believe the project is inconsistent and should identify the Oregon Coastal Management Program element(s) in question. You should also describe how the project could be modified, if possible, to make it consistent with the Oregon Coastal Management Program.