Regulatory Program Notices

Regulatory image of trees over a creekBelow are regulatory announcements, in chronological order, which are both current and historical. Current announcements provide information regarding ongoing regulatory processes and happenings. Historical announcements remain posted, as long as they remain up-to-date and applicable, to provide the public with a transparent record of changes and improvements to our program.

Regulatory announcements

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PUBLIC NOTICE
Announcing the Regional Conditions for the 2021 Nationwide Permits in Oregon

Point of Contact: Melody White
Phone: (503) 808-4385
Email: melody.j.white@usace.army.mil
Issue Date: March 5, 2021

Enclosures:
Regional Conditions (749kb PDF)
NWP Regional Definitions (757kb PDF)
Section 401 Water Quality Certifications (726kb PDF)
Coastal Zone Management Certification (771kb PDF)

On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of 12 existing nationwide permits (NWPs), general conditions, and definitions with some modifications. The Corps also issued four new NWPs. These 16 NWPs will go into effect on March 15, 2021, and will expire on March 14, 2026:

• NWP 12 – Oil or Natural Gas Pipeline Activities
• NWP 21 – Surface Coal Mining Activities
• NWP 29 – Residential Developments
• NWP 39 – Commercial and Institutional Developments
• NWP 40 – Agricultural Activities
• NWP 42 – Recreational Facilities
• NWP 43 – Stormwater Management Facilities
• NWP 44 – Mining Activities
• NWP 48 – Commercial Shellfish Mariculture Activities
• NWP 50 – Underground Coal Mining Activities
• NWP 51 – Land-Based Renewable Energy Generation Facilities
• NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
• NWP 55 – Seaweed Mariculture Activities
• NWP 56 – Finfish Mariculture Activities
• NWP 57 – Electric Utility Line and Telecommunications Activities
• NWP 58 – Utility Line Activities for Water and Other Substances

The 12 existing NWPs published in the January 13, 2021 final rule replace the 2017 versions of these NWPs. The 2017 versions of NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, and 52 expire on March 14, 2021. According to 33 CFR § 330.6(b), activities which have commenced (i.e, are under construction) or are under contract to commence in reliance upon an NWP that was verified under the 2017 NWP, will remain authorized provided the activity is completed within twelve months of the date of an NWP's expiration, modification, or revocation. If an activity that was verified under these 12 existing NWPs and has commenced or is under contract to commence, they will remain authorized until March 14, 2022.

With the publication of these NWPs in the Federal Register, the Northwestern Division has finalized regional conditions for the 16 NWPs in the state of Oregon. The regional conditions are intended to provide additional protection for the aquatic environment, by ensuring that the NWPs authorize only those activities with minimal adverse effects on the aquatic environment. The final Regional Conditions for the 16 NWPs are enclosed. The NWP Regional Definitions are enclosed.

The Section 401 Water Quality Certification (WQC) has been issued for Section 404 NWP activities by the Environmental Protection Agency (EPA), Region 10 in the state of Oregon. This WQC is applicable for projects occurring on tribal lands where tribes do not have treatment in a similar manner as a state and lands with exclusive federal jurisdiction. The WQCs were accepted by the Northwestern Division Commander and any conditions of the WQC are added to the 16 NWPs as regional conditions. The WQC was authorized with general conditions for NWP 40. The WQC from EPA is denied for NWP 12, 21, 29, 39, 42, 43, 44, 48, 50, 51, 52, 56, 57, and 58. These NWPs will require an individual WQC from EPA. The Corps did not request certification for NWP 55. Water quality conditions pertaining to the NWPs are enclosed. 

The WQC has been denied for all projects occurring on lands managed by the Confederated Tribes of the Warm Springs (CTWS), Confederated Tribes of the Umatilla Indian Reservation (CTUIR), and the Oregon Department of Environmental Quality (ODEQ). Any Section 404 NWP activity occurring in these areas will require an individual Section 401 WQC.

The Oregon Department of Land Conservation and Development (DLCD) has provided the Coastal Zone Management Act (CMZA) Consistency determination for the NWPs. Coastal Zone Condition are enclosed. 

There are 40 existing NWPs that were not reissued or modified by the January 13, 2021 final rule. These 40 NWPs were published in the January 6, 2017, issue of the Federal Register (82 FR 1860) and these NWPs remain in effect until the Corps issues a final rule reissuing those NWPs or March 18, 2022, whichever comes first. The 40 2017 NWPs that remain in effect are:

• NWP 1 – Aids to Navigation
• NWP 2 – Structures in Artificial Canals
• NWP 3 – Maintenance
• NWP 4 – Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
• NWP 5 – Scientific Measurement Devices
• NWP 6 – Survey Activities
• NWP 7 – Outfall Structures and Associated Intake Structures
• NWP 8 – Oil and Gas Structures on the Outer Continental Shelf
• NWP 9 – Structures in Fleeting and Anchorage Areas
• NWP 10 – Mooring Buoys
• NWP 11 – Temporary Recreational Structures
• NWP 13 – Bank Stabilization
• NWP 14 – Linear Transportation Projects
• NWP 15 – U.S. Coast Guard Approved Bridges
• NWP 16 – Return Water From Upland Contained Disposal Areas
• NWP 17 – Hydropower Projects
• NWP 18 – Minor Discharges
• NWP 19 – Minor Dredging
• NWP 20 – Response Operations for Oil or Hazardous Substances
• NWP 22 – Removal of Vessels
• NWP 23 – Approved Categorical Exclusions
• NWP 24 – Indian Tribe or State Administered Section 404 Programs
• NWP 25 – Structural Discharges
• NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities
• NWP 28 – Modifications of Existing Marinas
• NWP 30 – Moist Soil Management for Wildlife
• NWP 31 – Maintenance of Existing Flood Control Facilities
• NWP 32 – Completed Enforcement Actions
• NWP 33 – Temporary Construction, Access, and Dewatering
• NWP 34 – Cranberry Production Activities
• NWP 35 – Maintenance Dredging of Existing Basins
• NWP 36 – Boat Ramps
• NWP 37 – Emergency Watershed Protection and Rehabilitation
• NWP 38 – Cleanup of Hazardous and Toxic Waste
• NWP 41 – Reshaping Existing Drainage Ditches
• NWP 45 – Repair of Uplands Damaged by Discrete Events
• NWP 46 – Discharges in Ditches
• NWP 49 – Coal Remining Activities
• NWP 53 – Removal of Low-Head Dams
• NWP 54 – Living Shorelines

The regional conditions and WQCs for these 40 NWPs, that were approved by division engineers in 2017, remain in effect while these 2017 NWPs remain in effect. 

The January 13, 2021, Federal Register notice is available for viewing at https://www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits 

As an alternative, interested parties can access the January 13, 2021, final rule and related documents at: www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/

All Portland District NWP Documents and information will be posted at: www.nwp.usace.army.mil/Missions/Regulatory/Nationwide/

PUBLIC NOTICE
Federal Register Notice Announcing the Reissuance of the Nationwide Permits 

Posting Date: January 13, 2021
Effective Date: March 15, 2021

On January 13, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of 12 existing nationwide permits (NWPs) and four new NWPs, as well as the reissuance of NWP general conditions and definitions with some modifications. These 16 NWPs will go into effect on March 15, 2021, and will expire on March 14, 2026:

• NWP 12 – Oil or Natural Gas Pipeline Activities
• NWP 21 – Surface Coal Mining Activities
• NWP 29 – Residential Developments
• NWP 39 – Commercial and Institutional Developments
• NWP 40 – Agricultural Activities
• NWP 42 – Recreational Facilities
• NWP 43 – Stormwater Management Facilities
• NWP 44 – Mining Activities
• NWP 48 – Commercial Shellfish Mariculture Activities
• NWP 50 – Underground Coal Mining Activities
• NWP 51 – Land-Based Renewable Energy Generation Facilities
• NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
• NWP 55 – Seaweed Mariculture Activities
• NWP 56 – Finfish Mariculture Activities
• NWP 57 – Electric Utility Line and Telecommunications Activities
• NWP 58 – Utility Line Activities for Water and Other Substances

The Corps has also issued final decision documents for the new and reissued NWPs. These final decision documents are available at www.regulations.gov at docket number COE-2020-0002. Furthermore, the national NWP decision documents will be supplemented by Division Engineers to address decisions concerning the addition of regional conditions to the NWPs.

The 12 existing NWPs published in the January 13, 2021 final rule replace the 2017 versions of these NWPs. The 2017 versions of NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, and 52 expire on March 14, 2021.  

With the publication of this Federal Register notice, Corps divisions will begin finalizing regional conditions for these 16 NWPs. Regional conditions will provide additional protection for the aquatic environment, and will help ensure that the NWPs authorize only those activities with no more than minimal adverse environmental effects. Regional conditions will help ensure protection of high value waters within Portland District.

Corps divisions and districts will also begin determining which conditions for water quality certifications issued by states, tribes, and EPA for the issuance of these NWPs become conditions of these NWPs. Corps divisions and districts will also begin determining which conditions for Coastal Zone Management Act consistency concurrences issued by states for the issuance of these NWPs become conditions of these NWPs. Those regional conditions will be announced in a future public notice issued by the Portland District. 

There are 40 existing NWPs that were not reissued or modified by the January 13, 2021 final rule. Those 40 NWPs were published in the January 6, 2017, issue of the Federal Register (82 FR 1860) and those NWPs remain in effect until the Corps issues a final rule reissuing those NWPs or March 18, 2022, whichever comes first. The 40 2017 NWPs that remain in effect are:

• NWP 1 – Aids to Navigation
• NWP 2 – Structures in Artificial Canals
• NWP 3 – Maintenance
• NWP 4 – Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
• NWP 5 – Scientific Measurement Devices
• NWP 6 – Survey Activities
• NWP 7 – Outfall Structures and Associated Intake Structures
• NWP 8 – Oil and Gas Structures on the Outer Continental Shelf
• NWP 9 – Structures in Fleeting and Anchorage Areas
• NWP 10 – Mooring Buoys
• NWP 11 – Temporary Recreational Structures
• NWP 13 – Bank Stabilization
• NWP 14 – Linear Transportation Projects
• NWP 15 – U.S. Coast Guard Approved Bridges
• NWP 16 – Return Water From Upland Contained Disposal Areas
• NWP 17 – Hydropower Projects
• NWP 18 – Minor Discharges
• NWP 19 – Minor Dredging
• NWP 20 – Response Operations for Oil or Hazardous Substances
• NWP 22 – Removal of Vessels
• NWP 23 – Approved Categorical Exclusions
• NWP 24 – Indian Tribe or State Administered Section 404 Programs
• NWP 25 – Structural Discharges
• NWP 27 – Aquatic Habitat Restoration, Establishment, and Enhancement Activities
• NWP 28 – Modifications of Existing Marinas
• NWP 30 – Moist Soil Management for Wildlife
• NWP 31 – Maintenance of Existing Flood Control Facilities
• NWP 32 – Completed Enforcement Actions
• NWP 33 – Temporary Construction, Access, and Dewatering
• NWP 34 – Cranberry Production Activities
• NWP 35 – Maintenance Dredging of Existing Basins
• NWP 36 – Boat Ramps
• NWP 37 – Emergency Watershed Protection and Rehabilitation
• NWP 38 – Cleanup of Hazardous and Toxic Waste
• NWP 41 – Reshaping Existing Drainage Ditches
• NWP 45 – Repair of Uplands Damaged by Discrete Events
• NWP 46 – Discharges in Ditches
• NWP 49 – Coal Remining Activities
• NWP 53 – Removal of Low-Head Dams
• NWP 54 – Living Shorelines

The regional conditions for these 40 NWPs that were approved by division engineers in 2017 remain in effect while these 2017 NWPs remain in effect. 

The January 13, 2021, Federal Register notice is available for viewing at www.federalregister.gov/documents/2021/01/13/2021-00102/reissuance-and-modification-of-nationwide-permits 

As an alternative, interested parties can access the January 13, 2021, final rule and related documents at: www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits

Index of 2021 Nationwide Permits, Conditions, District Engineer’s Decision, Further Information, and Definitions

Nationwide Permits
12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances

General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles 
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United States 
32. Pre-Construction Notification

District Engineer’s Decision

Further Information

Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference
Enhancement
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Loss of waters of the United States
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody

Index of 2017 Nationwide Permits, Conditions, District Engineer’s Decision, Further Information, and Definitions That Remain in Effect Under the January 6, 2017, Final Rule (82 FR 1860)

Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines

General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Bird and Bald and Golden Eagle Permits
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United States 
32. Pre-Construction Notification

District Engineer’s Decision

Further Information

Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Intermittent stream
Loss of waters of the United States
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Protected tribal resources
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody

Joint Public Notice
Monthly Federal-State interagency coordination and pre-application meetings

Issue Date: January 13, 2021

The U.S. Army Corps of Engineers, Portland District (Corps), and the Oregon Department of State Lands (DSL) jointly welcome prospective Clean Water Act (CWA) §404/§10 of the Rivers and Harbors Act (RHA) of 1899 and Oregon’s Removal-Fill permit applicants to meet with the agencies as part of regularly scheduled interagency pre-application meetings, known as “Kaizen”. The meetings supplement existing pre-application coordination led by the Corps and DSL.

The Kaizen pre-application process is intended for non-routine permit evaluations that may be large, complex, or controversial in nature. The intent of the meetings is to provide meaningful comment and feedback to prospective applicants early in the permitting process, to help them most effectively prepare permit applications and address agency concerns.

On the third Wednesday of each month, from 1 to 2 p.m., participating state and federal agencies will meet with a prospective applicant to discuss their proposed project, provide feedback, and share information.

The meetings are designed to assess draft information, and prospective attendees are asked to provide basic project information, in the form of responses to a standard set of questions, at least two weeks prior to the meeting.

Meeting locations and dates for 2021*
January 20, 2021 – DSL – This meeting will be held remotely
February 17, 2021 – DEQ – This meeting will be held remotely
March 17, 2021 – Corps – This meeting will be held remotely
April 21, 2021 – DSL – Salem, 775 Summer St NE, Suite 100
May 19, 2021 – DEQ – Portland, 700 NE Multnomah St., Suite 600
June 16, 2021 – Corps – Portland, 333 SW 1st Ave.
July 21, 2021 – DSL – Salem, 775 Summer St NE, Suite 100
August 18, 2021 – DEQ – Portland, 700 NE Multnomah St., Suite 600
September 15, 2021 – Corps – Portland, 333 SW 1st Ave.
October 20, 2021 – DSL – Salem, 775 Summer St NE, Suite 100
November 17, 2021 – DEQ – Portland, 700 NE Multnomah St., Suite 600
December 15, 2021 – Corps – Portland, 333 SW 1st Ave.

*Meetings will be held virtually for at least Jan-Mar, possibly longer. An in-person vs. virtual meeting will be determined closer to the actual meeting dates. Reach out to the agency hosting that month for more information.
 
Note: Meetings may be relocated to Salem, Eugene, or elsewhere if appropriate for a specific project/pre-applicant.

Screening tools and pre-meeting information*
Prospective applicants interested in a Kaizen pre-application meeting should work with their points of contact at the Corps and DSL and review online project screening tools prior to requesting time at a monthly agency meeting.

The screening tools, known as the matrix and accompanying matrix user’s guide, are available on the Oregon DSL website, linked here:
http://www.oregon.gov/dsl/WW/Pages/PreApp.aspx

The matrix will help prospective applicants assess if a Kaizen pre-application meeting will be beneficial to their project development. Even if the applicant opts to not have a Kaizen pre- application meeting, the information contained in the matrix and user’s guide may be helpful for any project potentially needing a §404 CWA permit (and associated 401 Water Quality Certification), and/or a §10 RHA permit and/or a Removal-Fill Permit, and a less formal pre-application meeting may still be appropriate.

The screening tools are intended primarily for use by large-scale, controversial or complex projects. The tools are available for any potential applicant or agency staff person to use, and can be scaled down to assess the risks associated with less complex or less controversial projects.

Participating agencies*
• U.S. Army Corps of Engineers – Portland District
• Oregon Department of State Lands (Removal-Fill & State-Owned Land)
• Oregon Department of Environmental Quality
• U.S. Environmental Protection Agency – Region 10 Oregon Operations Office
• National Oceanic and Atmospheric Administration, National Marine Fisheries Service
• U.S. Fish and Wildlife Service
• Oregon Department of Geology and Mineral Industries
• Oregon Department of Fish and Wildlife
• Oregon Department of Land Conservation and Development
• Oregon State Marine Board
• Oregon Water Resources Department
• City of Portland

*Some agencies attend only when their jurisdiction applies to the project being discussed that month.

For more information, please contact:
Jaimee Davis, U.S. Army Corps of Engineers, Portland District
Phone: 503-808-4381
Email: jaimee.w.davis@usace.army.mil

Christopher Castelli, Oregon Department of State Lands
Phone: 503-986-5280
Email: chris.castelli@state.or.us

Sara Slater, Oregon Department of Environmental Quality
Phone: 541-633-2007
Email: sara.slater@state.or.us

PUBLIC NOTICE
Emergency Procedures

Issue Date: October 5, 2020

The U.S. Army Corps of Engineers, Portland District (Corps) is issuing a Special Public Notice to inform the public that the Corps has posted emergency procedures on its website, as follows:

The Corps regulations for processing of permit applications at 33 CFR Part 325.2(e)(4) defines an “emergency” as a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a Department of the Army Permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures.

The Corps may not view an action as an emergency if the applicant has known of the deficient condition and the need for work, but has not made reasonable attempts to secure appropriate permits and to conduct the work in a timely manner. Emergency declarations by the state or a county government does not mean all projects within the region of the declared emergency qualify as emergency situations. The Corps makes emergency authorization decisions on a case-by-case basis. 

You must immediately notify the Corps Regulatory Branch of the need for emergency work and obtain authorization, if applicable, prior to performing the work in waters of the United States. The Corps has the responsibility to determine if the proposed work is consistent with the Corps’ definition of an emergency, whether authorization is needed, and if so, which type of authorization is required. 

Contact the Corps Regulatory Branch Immediately:
Call the Corps Regulatory Branch project manager for your region to discuss the situation as soon as possible. For a list of project managers and their regions, visit www.nwp.usace.army.mil/Missions/Regulatory/Contact. If you need to contact the Corps after work hours or on weekends, please contact the Regulatory Branch Chief, Mr. Bill Abadie, at (503) 708-7653.

If the work meets the Corps’ definition of emergency, then the Corps will initiate the emergency authorization procedures. Emergency authorization procedures include coordinating with resources agencies, tribes, and our Division office. The process may take from a few hours to up to a week. Work cannot begin until the Corps indicates work may commence. The emergency work should be the minimum necessary to resolve the emergency situation. Following the emergency, additional coordination with the Corps will likely be required to remove or modify the emergency work, to obtain authorization for additional proposed work to complete the final project, or for compensatory mitigation for unavoidable impacts to waters of the United States. A final permit approval may take over six months to obtain.

For projects that do not qualify as emergency situations, the Corps may initiate “expedited” (non-emergency) authorization procedures. This process may take several weeks to complete. In other cases, the proposed work will be subject to our permit processing procedures appropriate for the nature and location of the proposed work. 

It is important that you contact the Corps prior to beginning work in waters of the United States and as soon as you are aware of the need for work. Unauthorized work may be subject to an enforcement action under our procedures outlined in 33 CFR 326.

PUBLIC NOTICE
Clean Water Act
Section 401 Final Rule

The U.S. Army Corps of Engineers, Portland District (Corps) is issuing this Special Public Notice to announce the Clean Water Act Section 401 Certification Rule as it applies to Department of the Army permits for activities in Oregon.

On June 1, 2020, the U.S. Environmental Protection Agency finalized the Clean Water Act Section 401 Certification Rule (40 CFR Part 121) to update and clarify the procedural requirements for water quality certification under Section 401 of the Clean Water Act. Additional information, including the full text of the Final Rule, is available on EPA’s website (www.epa.gov/cwa-401). The Final Rule became effective on September 11, 2020.

1. How does the Final Rule apply to Department of the Army permits?
Under Section 401 of the Clean Water Act, a federal agency, such as the Corps, may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a certifying authority issues a Section 401 water quality certification verifying compliance with existing water quality requirements, the certifying authority waives the certification requirement, or the federal agency determines the certification requirement has been waived. An individual water quality certification or waiver is required for Department of the Army permits that would result in the discharge of dredged or fill material unless the discharge is for an activity where a general water quality certification has already been issued.

2. Who are the certifying authorities for activities in Oregon?
The certifying authority is the agency or tribe responsible for certifying compliance with applicable water quality requirements in accordance with Section 401 of the Clean Water Act. The certifying authorities in Oregon are:

U.S. Environmental Protection Agency, Region 10. EPA is the certifying authority for activities in Indian Country. Indian County includes lands within reservation boundaries, lands held in trust by the Federal Government outside of reservation boundaries, and “In-Lieu” sites (e.g., in-lieu fishing sites along the Columbia River). EPA is also the certifying authority on lands with exclusive Federal jurisdiction (the only such lands in Oregon is the dam at Willamette Falls).

Confederated Tribes of the Umatilla Indian Reservation. The Confederated Tribes of the Umatilla Indian Reservation is the certifying authority for activities on their respective tribal lands.

Confederated Tribes of the Warm Springs Reservation of Oregon. The Confederated Tribes of the Warm Springs Reservation of Oregon is the certifying authority for activities on their respective tribal lands.

Oregon Department of Environmental Quality. The Oregon Department of Environmental Quality is the certifying authority for activities in Oregon on all other lands not identified above.

3. What are the procedural changes in the certification process that affect applications for Department of the Army permits?
The procedural changes include: (a) the requirement to submit a pre-filling meeting request to the certifying authority; (b) the content requirements of a request for water quality certification; and (c) the requirement to submit the certification request to the certifying authority and the Federal permitting or licensing authority concurrently. (Please see the Final Rule for additional procedures not discussed in this notice).

a) The regulations at 40 CFR Part 121.4 require the project proponent (i.e., permit applicant) to request a pre-filing meeting with the certifying authority at least 30 days prior to submitting a request for water quality certification. The pre-filing meeting is similar to a “pre-application” meeting, but the certifying authority is not obligated to grant or respond to the pre-filing meeting request. The Final Rule does not set a limit on how early a project proponent may submit a pre-filing meeting request, but it must be at least 30 days prior to submitting a request for water quality certification. For projects that include the discharge of dredged or fill material, permit applicants should complete the pre-filing meeting request requirement before submitting an application to the Corps for a Department of the Army permit.

b) The regulations at 40 CFR Part 121.5 list the information that must be included to request an individual water quality certification as follows:
1) Identify the project proponent(s) and a point of contact;
2) Identify the proposed project;
3) Identify the applicable federal license or permit (i.e., the Department of the Army permit);
4) Identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters;
5) Include a description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge;
6) Include a list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received;
7) Include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request; 8) Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief”; and
8) Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.”; and
9) Contain the following statement: “The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.”

Please note, the list above requires some information that is not currently included in the Joint Permit Application (JPA) and you will need to provide that additional information. Submitting only the JPA will not result in a valid request for certification. During the review process, DEQ may request additional information to determine compliance with state laws. The agencies are reviewing revision to the JPA to meet the content requirement for a certification request. The Corps will determine the reasonable period of time for the certifying authority to take action on the certification request after submittal of a valid request.

c) The regulations at 40 CFR Part 121.5 requires the project proponent to submit the request for water quality certification to the certifying authority and to the Federal permitting or licensing agency concurrently. For activities that include a discharge of dredged or fill material, project proponents should submit their permit application for a Department of the Army permit and their certification request to the Corps at the same time. For activities that include a discharge of dredged or fill material, project proponents should not submit their permit application to the Corps before completing the pre-filing meeting request requirement.

4. How do you submit a pre-filing meeting request to the certifying authority?
The pre-filing meeting request should be submitted directly to the respective certifying authority based on the location of the activity as described in Item 2 above.

Pre-filing meeting requests may be submitted by email to the Oregon Department of Environmental Quality at: 401applications@deq.state.or.us, or to the U.S. Environmental Protection Agency, Region 10 at: storm.linda@epa.gov and R10-401-certs@epa.gov. For DEQ, the subject line must include the words “Pre-filing meeting request”, as well as the project name.

Pre-filing meeting requests may be submitted to the Confederated Tribes of the Umatilla Indian Reservation at: 46411 Timine Way, Pendleton, Oregon, 97801

Pre-filing meeting requests may be submitted to the Confederated Tribes of the Warm Springs Reservation of Oregon at: Post Office Box C, Warm Springs, Oregon, 97761

5. How do you submit a certification request related to a Department of the Army permit?
The certification request must be submitted to the respective certifying authority and to the Corps concurrently. Certification requests should be submitted to the certifying authority by the method identified in Item 4 above. The certification request and application for a Department of the Army permit should be submitted to the Corps together by email at: PortlandPermits@usace.army.mil

6. What is the Corps doing to address the procedures in the Clean Water Act Section 401 Certification Rule?
The Corps recognizes there will be a transition period as project proponents, consultants and members of the regulated public become familiar with the requirements of the Final Rule. Applications for Department of the Army permits for activities that require water quality certification submitted on or after September 11, 2020, will be subject to the 30-day pre-filing meeting request and certification request process, which may affect the timeline for an applicant to obtain a valid Department of the Army permit. The Corps encourages all permit applicants to complete the pre-filing meeting request requirement prior to submitting a permit application to the Corps.

The Corps is actively coordinating with the certifying authority agencies to address our procedures related to the Final Rule. As commented above, the agencies are evaluating revisions to the JPA to meet the content requirements for a certification request.

For additional information on the certification process, please contact the respective certifying authority as identified in Item 2 above.

For additional information on the Corps’ Regulatory Program, including information on how to apply for a permit from the Portland District, please see our website at: www.nwp.usace.army.mil/Missions/Regulatory

SPECIAL PUBLIC NOTICE
Electronic Submittals

Point of Contact: Carrie Bond
Phone: (503) 808-4387
Email: Carrie.L.Bond@usace.army.mil
Issue Date: June 30, 2020

The U.S. Army Corps of Engineers (Corps), Portland District, Regulatory Branch has been accepting permit applications electronically since August 2016 for all counties in Oregon and for those ports in Washington that obtain permits from the Portland District.

Update - Electronic Submittals (For Files >20 MB)
The Corps requests that you contact your county Project Manager (PM) at the link below to submit files larger than 20 MB to the Portland District, Regulatory Branch. We will send you a link to use our file exchange site. If you do submit files larger than 20 MB, you should follow up with the PM to ensure the files were submitted successfully.

Reminder - Process for Electronic Submittals (For Files <20 MB)
Please email your permit applications, permit modification requests, and jurisdictional determination requests (with wetland delineations) to the following email address: PortlandPermits@usace.army.mil. All documents should be formatted as Adobe Acrobat PDF files (except for Excel files that cannot easily be converted to PDF). You will receive a receipt notification email with the project number and the PM assigned to your project. Once a PM is assigned, you may email additional items directly to the assigned PM, or follow the instructions above for files larger than 20 MB.

If you do not receive a receipt notification email after 5 working days from the date of your electronic permit application submission, please contact your county PM.

You can find contact information for your county PM on the map at this link: http://www.nwp.usace.army.mil/Missions/Regulatory/Contact.aspx

Oregon Department of State Lands

Issue Date: July 10, 2020
Expiration Date: August 10, 2020
US Army Corps of Engineers No: NWP-2019-128
Oregon Department of State Lands No: 61912

 

30 Day Notice

NWP-2019-128 figures

Interested parties are hereby notified that the U.S. Army Corps of Engineers, Portland District (Corps) and the Oregon Department of State Lands (DSL) have received a request to establish the proposed Glenwood Wetland Mitigation Bank. The Corps and DSL are soliciting comments on the proposed mitigation bank.

A mitigation bank is a site where aquatic resources (e.g., wetlands and streams) are restored, established/created, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by the Corps under the authority of Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and/or by DSL under the authority of Oregon’s Removal-Fill Law (ORS 196.800 - 196.990). A mitigation bank sells credits to permittees whose obligation to provide compensatory mitigation is transferred to the mitigation bank sponsor.

Bank Sponsor: Glenwood Wetland, LLC
Attention: Jay Hoffman
22307 Southwest Munger Lane
Sherwood, Oregon 97140
Email: jay@tvpfarms.com
Telephone: (503) 628-0772

Location: The proposed mitigation bank site is located in the Tualatin River floodplain at 13220 Southwest Hillsboro Highway, in Hillsboro, Washington County, Oregon. The site is in Section Sections 4, 8, and 9, Township 2 South, Range 2 West at Latitude and Longitude: 45.420000°, -122.950000° (Enclosure 1).

Service Area: The mitigation bank service area is the geographic area within which impacts can be mitigated at a specific mitigation bank. The proposed service area for this bank is the Tualatin Watershed (4th Field Hydrologic Unit 17090010) (Enclosure 1). This service area includes the urbanizing areas of Tigard, Beaverton, Tualatin, King City, Sherwood, Aloha, Hillsboro, Cornelius, Forest Grove, North Plains, Banks, and Gaston.

Bank Description: The proposed bank would generate wetland credits by restoring and enhancing wetlands and upland buffers. The goals of the project include converting the existing agricultural fields to a wetland complex, improving the functions of existing wetland areas, increasing the acreage of wetlands, developing diverse native plant communities and buffers, and ensuring a mechanism for long-term protection and management.

The proposal includes disrupting drain tiles, installing wooden posts as an anchor to encourage beaver dam establishment, and planting of native trees, shrubs, and herbaceous species. No grading, placement of dredged or fill material in wetlands or streams, or removal of material from wetlands or streams is proposed. Existing drainage ditches would be left to self-restore. If fully successful the 162-acre Bank project would restore approximately 57 acres of wetland and enhance 90 acres of wetland. The project includes 15 acres of upland buffers. The Sponsor also seeks to generate stream mitigation credits for stream channels that may develop naturally within the bank. Proposed wetland types are riverine, slope, and flats classes; palustrine emergent (127 acres), palustrine scrub-shrub (12 acres), and palustrine forested (8 acres). Additional figures in Enclosure 1.

Prospectus: A prospectus provides information on a proposed mitigation bank. A copy of the full prospectus for the proposed bank is available for review on the DSL’s website (https://lands.dsl.state.or.us). At this website, select “Check Permit and Authorization Status,” then select “Washington County,” and then select the Sponsor’s name from the list. A copy of the prospectus may be requested from the Corps or DSL.

Evaluation: The Corps and DSL will review all comments received and make an initial evaluation as to the potential of the proposed mitigation bank to provide compensatory mitigation for impacts authorized by the Corps and/or DSL. Comments received in response to this notice will be provided to the bank Sponsor and to an Interagency Review Team (IRT). The IRT may include federal, state, local, and/or tribal representatives. The role of the IRT is to review documents for, and advise the Corps and DSL on, the establishment and management of mitigation banks.

If the Corps and DSL determine the proposed mitigation bank has the potential for providing appropriate compensatory mitigation, the Sponsor will prepare and submit a mitigation banking instrument. The instrument is a legal document governing the establishment, operation, and use of a mitigation bank. The Corps and DSL, in coordination with the IRT, will review the mitigation banking instrument and determine whether to approve the mitigation bank.

Submitting Comments: Comments may be submitted to the Corps or DSL representatives listed below by conventional mail, e-mail, or through the DSL’s website. All comments, whether by conventional mail or email, must be received no later than the expiration date of this public notice to ensure consideration.

Either conventional mail or e-mail comments must include the Corps and DSL 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 and DSL reference number. All comments received will become part of the administrative record and are subject to public release by the Corps under the Freedom of Information Act including any personally identifiable information such as names, phone numbers, and addresses.

Additional information about the proposed mitigation bank may be obtained from the Corps and/or DSL contacts listed below.

Jessica Menichino
U.S. Army Corps of Engineers
CENWP-ODG
P.O. Box 2946
Portland, OR 97208-2946
Email: Jessica.M.Menichino@usace.army.mil
Telephone: (503) 808-4382

Melody Rudenko
Oregon Department of State Lands
775 Summer Street NE
Salem, OR 97301-1279
Telephone: (503) 508-4035

Joint Public Notice
Revised Wetland Mitigation Bank Prospectus

Dairy Creek Mitigation Bank,
Washington County, Oregon


Issue Date: May 15, 2020
Expiration Date: June 14, 2020
US Army Corps of Engineers No: NWP-2019-127
Oregon Department of State Lands No: 61846-NP

NWP-2019-127 figures

30 Day Notice
Interested parties are hereby notified that the U.S. Army Corps of Engineers, Portland District (Corps) and the Oregon Department of State Lands (DSL) have received a revised prospectus for the proposed Dairy Creek Wetland Mitigation Bank.

The initial prospectus described a proposal to generate wetland credits, with the potential to develop stream mitigation credits at a later date. A public notice requesting comments on the initial bank proposal was issued on April 5, 2019. This revised prospectus provides details regarding the stream mitigation design. A prospectus is a report that provides a summary of information regarding a proposed compensatory mitigation bank. The Corps and DSL are soliciting comments on the stream mitigation concept.

A mitigation bank is a site where resources (e.g., wetlands, streams, riparian areas) are restored, established/created, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts as authorized by DSL under the authority of Oregon’s Removal-Fill Law (ORS 196.800 - 196.990) and/or the Corps under the authority of Section 404 of the Clean Water Act. A mitigation bank sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. The operation and use of a mitigation bank is governed by a mitigation bank instrument.

Bank Sponsors: DCMB LLC
Attention: Bob Bobosky
6770 Canyon Drive
Portland, Oregon 97225

Location: The proposed mitigation bank site is located near Banks, in Washington
County, Oregon; tax lot 800; Section 36, Township 2 North, Range 4 West; Latitude
45.616498 North and Longitude 123.121295 West (Figure 1). The service area will be the Tualatin basin (Figure 2).

Stream Mitigation Concept: The preliminary stream mitigation design includes enhancing approximately 2.5 acres of perennial channel of the West Fork Dairy Creek, and creating approximately 3.6 acres of intermittent stream channels off of the creek that mimic historic flow patterns and side channel habitat (Figure 3). The goal is to reconnect the West Fork Dairy Creek with its adjacent floodplain and improve the function of riverine wetlands and water resources at the project site as well as downstream. In addition to the stream mitigation, the sponsor proposes to restore/create 94.4 acres of wetland and enhance 7.6 acres of wetland. The project includes 20.3 acres of upland buffers.

Evaluation: The proposed Dairy Creek Mitigation Bank will be evaluated in coordination with an Interagency Review Team (IRT), which includes federal, state, local and/or tribal representatives. The role of the IRT is review documents for, and advise the Corps on, the establishment and management of mitigation banks. The IRT will review the prospectus, draft and final mitigation bank instrument and other applicable documents. The mitigation bank instrument is the legal agreement governing the operation and use of a mitigation bank and includes the ecological goals of the project, grading and planting plans, monitoring, maintenance, and the number and schedule of wetland credits to be made available when performance standards have been met.

Submitting Comments: Interested parties are invited to provide comments on the prospectus. Comments may be submitted by conventional mail or email to the Corps or DSL representatives listed below or through the DSL’s website as described below. All comments received will be considered in determining whether to approve the proposed mitigation bank. Comments received in response to this notice will be provided to the IRT and bank sponsors.

A copy of the prospectus is available for review on the DSL website: https://lands.dsl.state.or.us/. At this website, select “Check Permit and Authorization Status,” then select “Washington County,” and then select the sponsor’s name from the list. Additionally, from here, you may add comments. A copy of the prospectus may also be obtained by contacting the Corps or DSL representatives listed below. All comments, whether by conventional mail or electronically, must be received no later than the expiration date of this public notice to ensure consideration.

Please provide comments to:

Andrea Wagner
U.S. Army Corps of Engineers
Eugene Regulatory Field Office
211 East 7th Avenue, Suite 105
Eugene, OR 97401-2763
Email: andrea.r.wagner@usace.army.mil
Telephone: (541) 465-6882

OR

Dana Field
Oregon Department of State Lands
775 Summer Street NE
Salem, OR 97301-1279
Telephone: (503) 986-5238

ANNOUNCING THE RELEASE OF FORM ENG 6082 – NATIONWIDE PERMIT (NWP) PRE-CONSTRUCTION NOTIFICATION (PCN)

On January 6, 2017, the U.S. Army Corps of Engineers (Corps) published the notice in the Federal Register announcing the reissuance of all existing nationwide permits (NWPs), general conditions, and definitions with some modifications. The NWPs became effective on March 19, 2017, and will expire on March 18, 2022.

Certain NWPs require project proponents to notify Corps district engineers of their proposed activities prior to conducting the activities authorized by those NWPs, so that the district engineers can make case-specific determinations of NWP eligibility. The notification takes the form of a pre-construction notification (PCN). The purpose of a PCN is to give the district engineer an opportunity to review a proposed NWP activity to ensure that the proposed activity qualifies for NWP authorization.  In most cases, the district engineer has 45 days after receipt of a complete PCN to determine whether the proposed activity qualifies for NWP authorization or requires another form of Corps authorization.  More information on when an activity requires a PCN can be found in the Federal Register Notice:
www.govinfo.gov/content/pkg/FR-2017-01-06/pdf/2016-31355.pdf

Potential users of the NWPs should also check the Portland District’s website with the regional conditions for the NWPs, to determine if a PCN is required for a proposed activity.  Those regional conditions are available at: www.nwp.usace.army.mil/Missions/Regulatory/Nationwide.aspx, under the Nationwide permit module (“Regional permit conditions”).

To assist applicants in providing complete information needed for NWP PCNs, this PCN application form was created and approved by the Office of Management and Budget (OMB) in February 2019.  The use of this form is strongly encouraged to assist Corps districts with a streamlined evaluation of an applicant’s proposal.  Submitting a completed PCN form is expected to reduce requests for additional information requests and should reduce the amount of time it takes the district engineer to conclude his or her review. 

Instructions on how to complete the PCN application form and the PCN form can be found at:
www.publications.usace.army.mil/Portals/76/Eng_Form_6082_2019Oct.pdf?ver=2019-10-22-081550-710 (If you receive an error opening in your browser, right-click to save to your computer)

JOINT PUBLIC NOTICE

30 Day Notice
Issue Date: April 5, 2019
Closing Date: May 6, 2019
Corps File No.: NWP-2019-127
Oregon Department of State Lands No. 61846-NP

NWP-2019-127 figures

Interested parties are hereby notified that the U.S. Army Corps of Engineers, Portland District (Corps) and the Oregon Department of State Lands (DSL) have received a request to establish the proposed Dairy Creek Wetland Mitigation Bank. The Corps and DSL are soliciting comments on the proposed mitigation bank.

A mitigation bank is a site where aquatic resources such as wetlands and streams are restored, established/created, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by DSL under the authority of Oregon’s Removal-Fill Law (ORS 196.800 - 196.990) and/or the Corps under the authority of Section 404 of the Clean Water Act. A mitigation bank sponsor sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the sponsor. A mitigation bank is governed by a Mitigation Bank Instrument approved by the Sponsor and both agencies.

Bank Sponsors: Wolverine LLC and Lone Oak Land and Investments LLC
Attention: Bob Bobosky
6770 Canyon Drive
Portland, Oregon 97225
Email: r.bobosky@comcast.net
Telephone: (503) 292-8261

Location: The proposed mitigation bank site is located near Banks, in Washington County, Oregon; tax lot 800; Section 36, Township 2 North, Range 4 West; Latitude 45.616498 North and Longitude 123.121295 West (Figure 1).

Service Area: The mitigation bank service area is the geographic area within which impacts can be mitigated at a specific mitigation bank. The proposed service area for this bank is the Tualatin River watershed (4th Field Hydrologic Unit 17090010) below 1,000 feet in elevation (Figure 2). This service area includes the urbanizing areas of Banks, Beaverton, Cornelius, Forest Grove, Hillsboro, King City, Lake Oswego, North Plains, Portland, Sherwood, Tualatin, and West Linn.

Bank Description: The proposed bank would generate wetland credits by restoring, creating, and enhancing wetlands and upland buffers. The goals of the project include: improving the functions of existing wetland areas, increasing the acreage of wetlands, developing diverse native plant communities and buffers, and ensuring a mechanism for long-term protection and management. The sponsors also propose to include unimproved perimeter trails for management access and for possible future low-impact recreation such as walking or bird/wildlife viewing.

The proposed mitigation bank site is 134.1 acres, to be constructed in two phases. The proposal includes decomissioning drain tile and ditches, minimal grading in some areas for wetland creation, and possibly removing berms along portions of the West Fork of Dairy Creek. Overall, the sponsors propose to restore 84.6 acres of wetland, create 21.3 acres of wetland and enhance 7.9 acres of wetland. The project includes 20.3 acres of upland buffers. Proposed wetland types are riverine, slope, and flats classes; palustrine forested (78.9 acres), palustrine emergent (19.3 acres), and palustrine scrub-shrub (15.6 acres).

Evaluation: The proposed Dairy Creek Mitigation Bank will be evaluated by an Interagency Review Team (IRT), which includes federal, state, local and/or tribal representatives. The IRT is advisory to the Corps and DSL, to ensure the project is consistent and compatible with all applicable natural resource policies. The mitigation bank instrument is the legal agreement governing the operation and use of a mitigation bank and includes the ecological goals of the project, grading and planting plans, monitoring, maintenance, and the number and schedule of wetland credits to be made available when performance standards have been met.

Submitting Comments: Interested parties are invited to provide comments on the Prospectus, which provides a summary of information regarding a proposed compensatory mitigation bank. Comments may be submitted by conventional mail, email or through the DSL’s website. All comments received in response to this notice will be provided to the IRT and bank sponsors and will be considered in design and in the agencies’ decsions whether to approve the proposed mitigation bank.

A copy of the prospectus is available through the Corps on the Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) website at https://ribits.usace.army.mil/ribits_apex/f?p=107:278:15791694814368::NO:RP,278:P278_BANK_ID:5324. Click on “Dairy Creek Prospectus” and then the blue download arrow. A copy of the prospectus is also available for review on the DLS website: www.statelandsonline.com/. At this website, select “Check Permit and Authorization Status,” then select “Washington County,” and then select the sponsor’s name from the list. The prospectus may also be reviewed by appointment at the Corps or DSL offices listed below. All comments, whether by conventional mail or submitted electronically, must be received no later than the expiration date of this public notice to ensure consideration.

Please provide comments to:

Judy Linton
US Army Corps of Engineers (Portland)
CENWP-OD-G
PO Box 2946
Portland, OR 97208
judy.j.linton@usace.army.mil
503-808-4382

OR

Dana Field
Oregon Department of State Lands
775 Summer Street NE
Salem, OR 97301-1279
Phone: (503) 986-5238

Joint Public Notice
Notice of Change to Aquatic Resources Mitigation in Oregon

The Oregon Department of State Lands (DSL), United States (U.S.) Army Corps of Engineers, Portland District (Corps), and U.S. Environmental Protection Agency (EPA) jointly announce changes to mitigation that may be required as part of the state and federal permit programs. The Corps requires an applicant to obtain a permit for the placement of dredge or fill materials into waters of the U.S. under Section 404 of the Clean Water Act and co-administers Section 404 with the EPA. Under the Oregon Removal-Fill Law, DSL requires an applicant to obtain a permit for most projects that either place fill materials into or remove fill from waters of the state. Both the federal and state programs may require mitigation as part of an approved permit.

Oregon Department of State Lands
Beginning April 1, 2019, DSL will implement a rule affecting how mitigation will be determined under the Oregon Removal-Fill Law. DSL’s new rules will bring Oregon’s mitigation program into alignment with the 2008 Federal Compensatory Mitigation Final Rule. The DSL rule will provide more consistent, successful, and sustainable benefits for all aquatic resources across the state. Existing exemptions are not affected. The rule will require that proposed project impacts to wetlands and streams use appropriate assessment tools to ensure proper replacement of functions and values. For wetlands, DSL will require applicants to use the Oregon Rapid Wetland Assessment Protocol (ORWAP 3.1) for impacts to tidal waters, wetland types that are aquatic resources of special concern, and wetland impacts greater than 0.20 acres. For streams DSL will require applicants to use the Stream Function Assessment Method (SFAM) beginning July 1, 2019, for impacts to non-tidally influenced wadeable, intermittent or perennial streams, and aquatic resources of special concern that are associated with these intermittent or perennial streams. As with current DSL rules, under the new rule function and value assessment requirements may be waived for voluntary wetland and stream restoration projects on a case-by-case basis at DSL’s discretion. Assessments are not required for General Authorizations.

DSL will require that best professional judgment be used if ORWAP or SFAM do not apply, and best professional judgment may be used when wetland impacts are less than or equal to 0.2 acres. DSL continues to require that the Vernal Pool Function Assessment Method be used to assess the functions and values of vernal pools in the Agate Desert in Jackson County.

Applicants can use information from the assessments to demonstrate that impacts are being mitigated through avoidance, minimization, and compensatory mitigation. If compensatory mitigation is required for unavoidable impacts, applicants can demonstrate that the proposed mitigation site is eligible to replace the primary functions and values provided at the impact site and will provide a sufficient amount of mitigation to compensate for the impacts. To assist in this demonstration, beginning April 1, 2019, a new protocol for determining wetland and stream mitigation eligibility in Oregon will be available. Applicants will use the protocol for calculating their required amount of mitigation.

To accommodate transition to the new assessment requirements, DSL will continue to accept the following as part of an application that is determined complete by October 1, 2019: 1.) a department approved Hydrogeomorphic Method for wetlands function assessment, and 2.) best professional judgment to assess stream functions and values. Applications that are not complete by October 1, 2019 will need to be resubmitted using the new function assessment and mitigation requirements.

In the future, through additional state rulemaking, the DSL anticipates using SFAM outputs to determine how much stream compensatory mitigation is required. To reach this goal, the Corps, EPA, and DSL will be conducting additional work on SFAM. This phased-in approach to stream mitigation policy will provide incremental improvements in program outcomes, while providing time to adjust to new tools and protocols.

U.S. Army Corps of Engineers
Corps requirements for what constitutes a complete Department of the Army permit application have not changed. To ensure consistency between the federal and state programs, and to prevent the duplication of efforts on behalf of applicants, the Corps encourages applicants to use ORWAP and SFAM assessments where appropriate when submitting an application for a Department of the Army permit. Functions- and values-related information required under the DSL rule will be accepted by the Corps for reviewing proposed projects, including proposed mitigation. In addition the Corps encourages permit applicants to use the new protocols for determining wetland and stream mitigation eligibility and for calculating their required amount of compensatory mitigation. Whereas the Corps will accept DSL-required assessments for wetland impacts greater than 0.20 acres and for stream impacts, on a case-by-case basis the Corps may request the use of assessment tools for impacts up to 0.2 acres.

General Information
Development of the wetland and stream assessment tools and compensatory mitigation protocols has been a joint effort of DSL, Corps and EPA. An applicant’s use of the tools and protocols will help to support decision making in a consistent, predictable, robust, repeatable and defensible way. Changing from acreage-based to functions- and values-based mitigation will make mitigation more function- and watershed-based and provide better ecological outcomes.

Planning mitigation for anticipated impacts will be easier with the use of the Oregon Explorer Aquatic Mitigation Portal. The Portal includes wetland and stream map viewers for completing the office portion of an ORWAP or SFAM assessment, respectively. The Portal also includes a Mitigation Planning Map Viewer, which may be used for strategically planning mitigation projects on a watershed basis. The Portal is located at oregonexplorer.info/topics/aquatic-mitigation?ptopic=38.

For additional information related to the functions- and values-based stream and wetlands mitigation, please see the DSL website at: www.oregon.gov/dsl/WW/pages/aquatic-resources-mitigation-framework.aspx. You also may view the Corps Regulatory website for mitigation at: www.nwp.usace.army.mil/Missions/Regulatory/Mitigation.aspx. These sites provide access to helpful fact sheets, frequently asked questions, the eligibility and accounting protocol, the stream and wetlands assessment tools, and a listing of opportunities for technical training on the assessment tools.

We encourage you to stay informed by visiting the Aquatic Resources Mitigation Framework website: www.oregon.gov/dsl/WW/Pages/Aquatic-Resources-Mitigation-Framework.aspx and the DSL rulemaking website: www.oregon.gov/dsl/Laws/Pages/Rulemaking.aspx. You may ask questions and continue to provide comments regarding SFAM via DSL’s dedicated e-mail box AquaticResourceMitigationProject@dsl.state.or.us.

For additional information, contact the following Agency leads:

Melody Rudenko
Department of State Lands
503-508-4035
melody.rudenko@state.or.us

Tom Taylor
U.S. Army Corps of Engineers
503-808-4386
thomas.j.taylor@usace.army.mil

 

Notice: Interested parties are hereby notified that the U.S. Army Corps of Engineers Northwestern Division (Corps) and the U.S. Environmental Protection Agency – Region 10 (EPA) have implemented the May 2018 Sediment Evaluation Framework for the Pacific Northwest (SEF). The Corps and EPA solicited public comments regarding updates to Chapters 3 and 10 of the July 2016 SEF from December 22, 2017 through February 20, 2018. No public comments were received. Updates to the SEF chapters were also presented at the Regional Sediment Evaluation Team’s (RSET’s) annual public web-meeting held on November 30, 2017.

Purpose and Background: The SEF provides regional guidance for the characterization and assessment of dredged sediment and potential water quality impacts that may occur during dredging. The SEF describes procedures for the evaluation of potential contaminant-related environmental impacts of dredging and the aquatic disposal of dredged material in inland waters (regulated under the Clean Water Act [CWA]) and the transport and disposal of dredged material in ocean waters (regulated under the Marine Protection, Research, and Sanctuaries Act [MPRSA]). The RSET Agencies  prepared the SEF for use in the Pacific Northwest, defined here as the States of Washington, Oregon and Idaho. The SEF is periodically revised and updated to account for advances in regulatory practice and technical understanding.

The updated May 2018 SEF simplifies and promotes consistent use of the SEF. The RSET Agencies updated Chapter 3 (SEF Level 1 Evaluation) and Chapter 10 (Dredged Material Disposal and Post-Dredge Surface Management) of the 2016 SEF. The May 2018 SEF can be downloaded at the following website: www.nwd.usace.army.mil/Missions/Civil-Works/Navigation/RSET.

Questions: Questions and comments regarding the May 2018 SEF should be sent to:

 

 

Army Corps
PSET Lead
PSET.Lead@usace.army.mil

US Army Corps of Engineers, Portland District
CENWP-ODN-W
P.O. Box 2870
Portland, Oregon 97208-2870
  EPA
Linda Anderson-Carnahan
Anderson-Carnahan.Linda@epa.gov

US EPA Region 10 
OERA-140, Suite 155
1200 Sixth Ave.
Seattle, Washington 98101

 


[1] The RSET Agencies include: Corps Northwestern Division (chair) and Portland, Seattle, and Walla Walla Districts; EPA Region 10 (chair); National Marine Fisheries Service; U.S. Fish and Wildlife Service; Washington Department of Ecology; Washington Department of Natural Resources; Oregon Department of Environmental Quality; and Idaho Department of Environmental Quality.

 

 

 

The Oregon Department of State Lands (DSL), the U.S. Environmental Protection Agency, Region 10, and the U.S. Army Corps of Engineers, Portland District (Corps), jointly announce the publication and availability of the Stream Function Assessment Method (SFAM) version 1.0 dated June 2018. The method provides a scientifically supported, rapid assessment tool for gathering information on the functions and values associated with wadeable streams that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act and Oregon’s Removal-Fill Law. The method does not imply or represent a change in the definition of “Waters of the U.S.” or “Waters of the State.”

The purpose of this notice is to make the public aware of SFAM and associated tools, explain the need for and development of the method, and to invite feedback from users. SFAM has four components:
• Excel Workbook
• User Manual
• Scientific Rationale
• SFAM Map Viewer

The SFAM documents are available from the DSL website, www.oregon.gov/dsl/WW/pages/aquatic-resources-mitigation-framework.aspx. The documents and the SFAM Map Viewer are available from the Oregon Explorer Aquatic Mitigation topic page at oregonexplorer.info/topics/aquatic-mitigation?qt-subtopic_quicktab=0&ptopic=38.

SFAM was developed by experts from federal and state agencies with experience across Oregon and reflects the technical expertise and critical review of others from relevant professional and academic fields. The method has been field tested by interagency teams of state and federal scientists, as well as by private consultants, and was also the subject of statistical testing using data resulting from a field study. Use of the method will help to support decision making in a consistent, predictable, robust, repeatable and defensible way. 

SFAM will change how stream mitigation is achieved in Oregon. It will provide a stream assessment tool, which had previously been lacking, thereby making stream mitigation more function- and watershed-based and providing better ecological outcomes.

With this notice, DSL and the Corps recommend that project proponents use SFAM in their applications for state removal-fill permits and/or federal Section 404 dredged and fill material permits, where appropriate and practicable. SFAM can help to describe and quantify stream (and related resource) type and functions that will be impacted and replaced at the proposed impact and mitigation sites, respectively. DSL is currently conducting rulemaking to change from acre-based mitigation to function- and value-based mitigation, and is proposing that SFAM be required, with some exceptions, beginning July 2019.

The agencies will be providing technical training for the public to use and understand SFAM. Training opportunities will be offered through DSL’s website at: www.oregon.gov/dsl/WW/pages/aquatic-resources-mitigation-framework.aspx.

In the future, through additional state rulemaking, the agencies anticipate using SFAM outputs to determine how much stream compensatory mitigation is required. To reach this goal, the agencies will be conducting additional work following the release of SFAM to:
• Understand SFAM’s ability to detect changes in functions due to on-site actions 
• Improve SFAM based on user-feedback and work toward an approach for larger rivers
• Seek input on proposed stream accounting protocols for determining mitigation amount

This phased-in approach to stream mitigation policy will provide incremental improvements in program outcomes, while providing time to adjust to new tools and protocols.

We encourage you to stay informed by visiting the Aquatic Resources Mitigation Framework website: www.oregon.gov/dsl/WW/Pages/Aquatic-Resources-Mitigation-Framework.aspx and the proposed rulemaking website: www.oregon.gov/dsl/Laws/Pages/Rulemaking.aspx. You may ask questions and provide comments regarding SFAM via DSL’s dedicated email box AquaticResourceMitigationProject@dsl.state.or.us

For additional information, contact any one of the following Project Team leads:
 

U.S. Environmental Protection Agency
Tracie Nadeau
503-326-3685
Nadeau.Tracie@epa.gov
  Department of State Lands
Dana Hicks
503-986-5229
dana.hicks@state.or.us
  U.S. Army Corps of Engineers
Tom Taylor
Thomas.j.taylor@usace.army.mil

 

 

 

 

 

 

Public Notice
Compensatory Mitigation Requirements for Unavoidable Losses Occurring in Aquatic Resources of Special Concern

Issue Date: April 9, 2018

Point of Contact: Mr. Bill Abadie
Telephone: (503) 808-4370
Email: william.d.abadie@usace.army.mil

 


The purpose of this notice is to inform the public that the U.S. Army Corps of Engineers, Portland District (Corps) may require additional compensatory mitigation for unavoidable impacts and permanent losses of certain waters of the United States. The Corps has developed a list of Aquatic Resources of Special Concern (ARSC) to identify and define those aquatic resources that are unique, difficult to replace, and/or have high ecological function. The list of ARSC, with definitions, is attached. 

Mitigation is an important part of the Corps’ permit evaluation process. Compensatory mitigation may be required to offset unavoidable adverse impacts remaining after all appropriate and practicable avoidance and minimization measures have been implemented. Mitigation requirements are outlined in the Compensatory Mitigation for Losses of Aquatic Resources Final Rule (33 CFR Part 332), commonly referred to as the “mitigation rule.” 

The mitigation rule at 33 CFR Part 332.3(f) describes factors used to determine the amount of required compensatory mitigation to replace lost aquatic functions. Factors to consider regarding the amount of compensatory mitigation include the likelihood of success, the difficulty of establishing the desired aquatic resource type, and the temporal loss of aquatic resource functions due to the time it takes to fully achieve functions at the compensatory mitigation project. Due to their unique characteristics, ARSC can be particularly difficult to replace. Where unavoidable impacts result in environmental losses within ARSC, the Corps will consider the factors above in determining the appropriate compensatory mitigation requirements. Compensatory mitigation ratios for impacts to ARSC may be higher than required for other types of waters to account for the risk of failure and other factors, such as temporal loss, when replacing these aquatic resources.

 

 

 

Aquatic Resources of Special Concern
Portland District Definitions


a. Alkali Wetlands: Alkali wetlands occur in arid regions east of the Cascade Range and have saline or alkaline conditions where evaporation tends to concentrate salts in soils and water. Vegetation consists of plants adapted to saline or alkaline conditions.

b. Bogs: Bogs are wetlands with acidic organic soils (pH of <5.5) with no significant inflow or outflow of surface or ground water and generally receive water from direct precipitation. Bogs are characterized by vegetation able to grow in acidic conditions and are often covered by mosses, sedges, and evergreen shrubs and may also have an over story of evergreen trees.

c. Estuarine Wetlands: Estuaries are areas where rivers or streams meet the ocean and freshwater and saltwater mix. Estuarine wetlands are tidal wetlands where ocean derived salts measure greater than 0.5 parts per thousand during the period of average annual flow. Estuarine wetlands are usually semi enclosed by land, but have open, partially obstructed, or sporadic access to the open ocean.

d. Fens: Fens are wetlands similar to bogs that have organic soils that generally receive drainage from surrounding mineral soils and may include a surface water inlet and outlet. Soils in fens are generally less acidic (pH of >5.5) than bogs and receive waters rich in dissolved minerals. Vegetation in fens typically consists of grasses, sedges evergreen shrubs and may have an over story of evergreen trees.

e. Kelp beds: Kelp beds form on rocky substrate located in shallow subtidal areas, typically in waters between 5 and 25 meters. Kelp stalks are anchored to rocks by a holdfast, which is connected by a flexible stem-like feature to the blades. Gas-filled bladders keep the blades close to the surface where the blades fan out forming a canopy cover. Kelp beds occur when the kelp covers 30% or more of the substrate.

f. Marine Gardens: In Oregon, a marine garden is a specially protected area in which it is illegal to collect any marine invertebrate (except single mussels for bait). Marine Gardens are areas that are targeted for educational programs that allow visitors to enjoy and learn about intertidal resources. Marine gardens in Oregon are located at Haystack Rock, Cape Kiwanda, Otter Rock, Yaquina Head, Yachats State Park, Cape Perpetua and Harris Beach State Park and are managed by the Oregon Department of Fish and Wildlife.

g. Marine Reserves: A marine reserve is an area within Oregon's Territorial Sea or adjacent rocky intertidal area that is protected from all extractive activities, including the removal or disturbance of living and non-living marine resources, except as necessary for monitoring or research to evaluate reserve condition, effectiveness, or impact of stressors. Marine reserves in Oregon are located at Cape Falcon, Cascade Head, Otter Rock, Cape Perpetua, and Redfish Rocks and are managed by the Oregon Department of Fish and Wildlife.

h. Mature Forested Wetlands: Mature forested wetlands consist of trees with an aerial cover of 30% or more of the wetland where the average age of trees is 80 years or older or have an average diameter of 18 inches or greater (dbh). 

i. Native eelgrass (Zostera marina) beds: Zostera marina is a species of submerged aquatic vegetation that grows on substrates in intertidal and shallow subtidal marine waters. Z. marina is a rhizomatous, perennial flowering plant and exhibits both vegetative growth and reproduction by seed germination. Z. marina may form beds that are continuous, semi-continuous to patchy. A Z. marina eelgrass bed is defined as a minimum of 3 shoots per 0.25 m2 (1/4 square meter) within 1 meter of any adjacent shoots. To identify the bed boundary, proceed in a linear direction and find the last shoot that is within 1 meter of an adjacent shoot along that transect. The bed boundary (edge) is defined as the point 0.5 meter past that last shoot, in recognition of the average length of the roots and rhizomes extending from an individual shoot (Washington Dept. of Natural Resources (WADNR) 2012). 

j. Rocky substrate in tidal waters: Areas of rocky substrates consist of stones, boulders or bedrock that cover 75% or greater of an area where vegetation and/or macro algae cover less than 30% of the area. Rocky substrates may occur in both intertidal and subtidal marine waters. 

k. Vernal Pools: Vernal pools are seasonally inundated depressions underlain by an impermeable claypan or hardpan layer. A vernal pool is usually a closed depression without a naturally-occurring inlet or outlet that ponds water in the cool, low evaporation periods of winter and spring in regions with cool moist winters, and dries out during the hot dry summers. 

l. Wetlands in dunal systems along the Oregon coast: Dunes are ridges and hills of sand formed by the influence of wind and water. Dunal systems along the Oregon coast consist of a complex assembly of beaches, foredunes, hummocks, deflation plains, and transvers, oblique and parabolic dunes located between the Pacific Ocean and the foothills of the Coast Range. Wetlands in the dunal system along the Oregon coast may occur in the deflation plains, depressions, swales or low areas.

m. Willamette Valley wet prairie wetlands: Wet prairie wetlands are a type of wetland located in the Willamette Valley characterized by a seasonally high water table or perched water table on clay-rich soils. Wet prairie wetlands and dominated primarily by graminoids, including tufted hairgrass (Deschampsia caespitosa), camas (Camassia quamash), dense sedge (Carex densa), and lateral sedge (Carex unilateralis).

 

 

 

Public Notice
Announcing the Regional Conditions for the 2017 Nationwide Permits in Oregon

Download a printer-friendly pdf of this notice 

Issue Date: March 17, 2017

Point of Contact: Judy Linton
Phone: (503) 808-4382
Email: judy.l.linton@usace.army.mil

On January 6, 2017, the U.S. Army Corps of Engineers (Corps) published a notice in the Federal Register announcing the reissuance of all 50 existing nationwide permits (NWPs), general conditions, and definitions with some modifications. The Corps also issued two new NWPs, one new general condition, and five new definitions. The 2017 NWPs are effective as of March 19, 2017, and will expire on March 18, 2022.

Concurrent with the public interest review conducted for the NWPs, the Portland District solicited public comment concerning proposed regional conditions for the 2017 NWPs. The regional conditions are intended to provide additional protection for the aquatic environment, by ensuring that the NWPs authorize only those activities with minimal adverse effects on the aquatic environment. The final Regional Conditions for the 2017 NWPs, which apply to the state of Oregon and have been approved by the Northwestern Division Commander, are attached.

The Regional Conditions will be posted to the Portland District website soon. The District’s website can be found at http://www.nwp.usace.army.mil/Missions/Regulatory.aspx. In addition to the Regional Conditions, the website will include Section 401 Water Quality Certification (WQC) decisions on the 2017 NWPs from the Oregon Department of Environmental Quality and U.S. Environmental Protection Agency (for certain tribal lands), and the Coastal Zone Management Act (CZMA) consistency determination from the Oregon Department of Land Conservation and Development (DLCD). These documents will be posted as they become available.

2017 Nationwide Permit Regional Conditions Portland District

The following Nationwide Permit (NWP) regional conditions are for the State of Oregon. Regional conditions are placed on NWPs to ensure projects result in no more than minimal adverse impacts to the aquatic environment and to address local resource concerns.

ALL NWPs – 

1. Notification: For permittees that received written NWP approval, upon starting the authorized activities, you shall notify the U.S. Army Corps of Engineers, Portland District, Regulatory Branch that the work has started. Notification shall be provided by e-mail to cenwp.notify@usace.army.mil and the email subject line shall include: Corps project number and the project location by county.

2. Aquatic Resources of Special Concern: Pre-construction notification to the District Engineer is required for all activities proposed in waters of the U.S. within an aquatic resource of special concern. Aquatic resources of special concern are resources that are difficult to replace, unique, and/or have high ecological function. For the purpose of this regional condition, aquatic resources of special concern are native eel grass (Zostera marina) beds, mature forested wetlands, bogs, fens, vernal pools, alkali wetlands, wetlands in dunal systems along the Oregon coast, estuarine wetlands, Willamette Valley wet prairie wetlands, marine gardens, marine reserves, kelp beds, and rocky substrate in tidal waters.

In addition to the content requirements of NWP General Condition (GC) 32, the pre- construction notification must include a statement explaining why the effects of the proposed activity are no more than minimal. Written approval from the District Engineer must be obtained prior to commencing work.

Note: If the District Engineer determines that the adverse effects of the proposed activity are more than minimal, then the District Engineer will notify the applicant that either:

(a) the activity does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (b) the activity is authorized under the NWP subject to submission of a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level; or (c) the activity is authorized under the NWP with specific modifications or conditions.

3. Cultural Resources and Human Burials-Inadvertent Discovery Plan: In addition to the requirements in NWP GCs 20 and 21, the permittee shall immediately notify the District Engineer if, at any time during the course of the work authorized, human burials, cultural items, or historic properties, as defined by the National Historic Preservation Act and Native American Graves Protection and Repatriation Act, are discovered. The permittee shall implement the following procedures:
 
a. Immediately cease all ground disturbing activities.

b. Notify the Portland District Engineer as soon as possible following discovery but in no case later than 24 hours. Notification may be sent by fax (503-808-4375) or electronically (cenwp.notify@usace.army.mil) and shall identify the Corps project number and clearly specify the purpose is to report a cultural resource discovery. The permittee shall also notify the Corps representative (by email and telephone) identified in the verification letter.

c. Notify the Oregon State Historic Preservation Office by telephone at (503) 986-0690.

Failure to stop work immediately and until such time as the District Engineer has coordinated with all appropriate agencies and Native American tribes, and complied with the provisions of 33 CFR 325 (Appendix C), the National Historic Preservation Act, Native American Graves Protection and Repatriation Act, and other pertinent regulations could result in violation of state and federal laws. Violators may be subject to civil and criminal penalties.

4. In-water Work: To minimize potential impacts to aquatic species and habitat, in-water work will be limited by the following timing considerations:

a. Permittee shall complete all in-water work, to the maximum extent practicable, within the preferred time period (i.e., work window) specified in Oregon Department of Fish and Wildlife’s (ODFW) “Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources,” June 2008, or most current version, available at: http://www.dfw.state.or.us/lands/inwater/.

b. If work cannot be completed within the preferred timing window, despite every attempt to do so, permittee shall submit a written request to work outside of the preferred window to the District Engineer. The request can be made by means of the joint-agency In-water Work Period Variance Request for Previously Permitted Authorizations form which can be found at http://www.oregon.gov/dsl/WW/Pages/WWforms.aspx. Permittee shall not begin any in- water work outside of the preferred window until they have received written approval from the District Engineer.

Note: The final specified in-water work period will be based on a project-specific evaluation and may supersede these guidelines through special conditions of the permit verification.

5. Essential Fish Habitat: Activities which may adversely affect essential fish habitat, as defined under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), are not authorized by NWP until essential fish habitat requirements have been met by the applicant and the Corps. Non-federal permittees must submit a pre-construction notification to the District Engineer if essential fish habitat may be affected by, or is in the vicinity of, a proposed activity and shall not begin work until notified by the District Engineer that the requirements of the essential fish habitat provisions of the MSA have been satisfied and the activity is authorized. The notification must identify the type(s) of essential fish habitat (e.g., Pacific coast salmon, Pacific coast groundfish, and/or Coastal-pelagic species) managed by a Fishery Management Plan that may be affected. Information about essential fish habitat is available at NOAA’s website: http://www.westcoast.fisheries.noaa.gov/.
 
6. Bank Stabilization: Permittee shall include the use of bioengineering techniques and natural materials in the project design to the maximum extent practicable and shall minimize the use of rock. Bioengineering bank stabilization techniques are those that increase the strength and structure of soils with a combination of biological and mechanical elements (e.g., vegetation, root wads and woody debris, rock structures). Riparian plantings shall be included in all project designs unless the permittee can demonstrate that such plantings are not practicable.

7. Fish Screening: To prevent injury or mortality to fish due to entrainment, the permittee shall ensure that all intake pipes include adequately sized screens.

Note: Fish passage and screening criteria can be obtained from the National Marine Fisheries Service (NMFS) at http://www.westcoast.fisheries.noaa.gov/fish_passage/solutions/index.html. Information regarding Oregon’s fish passage laws can be obtained from ODFW at http://www.dfw.state.or.us/fish/passage/links.asp.

8. Work Area Isolation and Dewatering: Appropriate best management practices shall be implemented to prevent erosion and to prevent sediments from entering waters of the U.S.

a. All in-water work shall be isolated from the active channel or conducted during low seasonal stream flows to the maximum extent practicable.

b. Cofferdams shall be constructed of non-erosive material, such as concrete jersey barriers, sand and gravel bag dams, or water bladders. Constructing a cofferdam by pushing material from the streambed or sloughing material from the streambanks is not authorized.

c. Sand and gravel bag dams shall be lined with a plastic liner or geotextile fabric to reduce permeability and prevent sediments and/or construction materials from entering waters of the U.S.

d. Upstream and downstream flows shall be maintained by routing flows around the construction site.

e. When dewatering is necessary for construction, a sediment basin, or other applicable method, shall be used to settle sediments prior to releasing the water back into the waterbody. Settled water shall be returned to the waterbody in such a manner as to avoid erosion. Sediment basins shall be placed in uplands.

f. Fish and other aquatic species must be salvaged (i.e., safely captured and relocated away from the project or development site) prior to dewatering.

Note: The ODFW requires a Scientific Take Permit be obtained to salvage fish and wildlife. Further information from ODFW is available at http://www.dfw.state.or.us/fish/license_permits_apps/scientific_taking_permit.asp.
 
9. Dredging: For NWP-authorized activities that involve removal of sediment from waters of the U.S., the permittee shall ensure that any necessary sediment characterization regarding size, composition, and potential contaminants is conducted prior to dredging. Sediment characterization must be conducted per the Sediment Evaluation Framework for the Pacific Northwest (available at: http://www.nwp.usace.army.mil/Missions/Environment/DMM.aspx).

Note 1: The return water from a contained disposal area is defined as a discharge of dredged material by 33 CFR Part 323.2(d) and requires separate authorization from the District Engineer (e.g., by NWP 16).

Note 2: The Oregon Department of Environmental Quality (DEQ) requires removed material placed in an upland site to meet the definitions of clean fill as provided in OAR 340-093-0030 or the use must be specifically allowed by DEQ by rule, permit, or other authorization.

10. Mechanized Equipment: In addition to the requirements in NWP GC 11, permittee shall implement the following practices to prevent or minimize impacts to the aquatic environment from mechanized equipment:

a. Use existing roads, paths, and construction pads where available. Temporary mats or pads, when required to provide access onto wetlands or tidal flats, shall be removed within 30 days of completing the authorized work.

b. Operate equipment from the top of a streambank and conduct work outside of the active stream channel, unless specifically authorized by the District Engineer.

c. Equipment shall not be staged, fueled, or maintained within waters of the U.S.

d. Spill prevention and containment materials shall be maintained and be readily accessible at vehicle staging areas. The amount of spill response materials (such as straw matting/bales, geotextiles, booms, diapers, and other absorbent materials, shovels, brooms, and containment bags) maintained on-site must be appropriate for the size of the authorized activity.

11. Stormwater Management: Pre-construction notification to the District Engineer is required for all activities resulting in the creation of new impervious surfaces if any species or designated critical habitat listed under the Endangered Species Act (ESA) might be affected or are in the vicinity of the activity. The Corps may require a post-construction stormwater management plan (SWMP) and completion of a supplemental Stormwater Information Form to assist in the determination of the activity's affects to listed species or designated critical habitat and to be used in ESA consultation as necessary.

Note 1: The Corps considers impervious surfaces to include roof tops, walkways, patios, driveways, parking or storage areas, concrete or asphalt paving, gravel roads, packed earthen material, and oiled surfaces.

Note 2: Under the DEQ 401 Water Quality Certification Program, the DEQ evaluates post- construction stormwater pollution for any project resulting in new, an increase in, or redevelopment of impervious surfaces. DEQ may require the applicant to submit a post-
 
construction SWMP for review and approval prior to the start of construction. DEQ provides information on preparing a SWMP at http://www.deq.state.or.us/wq/sec401cert/docs/stormwaterGuidelines.pdf. DEQ requires applicants to first consider low impact development options. If these options can’t be implemented, a narrative must be provided explaining why.

12. Erosion Control: During construction and until the site is stabilized, the permittee shall ensure all practicable measures are implemented and maintained to prevent erosion and runoff. Temporary stockpiles of excavated or dredged material shall be stabilized to prevent erosion. Once soils or slopes have been stabilized, permittee shall completely remove and properly dispose of or re-use all non-biodegradable components of installed control measures.

Note: DEQ provides information on erosion and sediment control measures at http://www.deq.state.or.us/wq/wqpermit/docs/general/npdes1200c/ErosionSedimentControl.pdf. Details on best management practices are found at http://www.deq.state.or.us/wq/wqpermit/docs/general/npdes1200c/BMPManual.pdf.

13. Temporary Fills and Impacts: To ensure no more than minimal adverse environmental effects from temporary fills and impacts to waters of the U.S:

a. Temporary fills and/or impacts to waters of the U.S. shall not exceed six months unless otherwise approved by the District Engineer.

b. No more than one-half (½) acre of waters of the U.S. may be temporarily filled or impacted unless otherwise approved by the District Engineer (temporary fills and impacts do not affect specified limits for loss of waters associated with specific nationwide permits).

c. Native soils and/or sediments removed from waters of the U.S. for project construction shall be stockpiled and used for site restoration to the maximum extent practicable.

d. Site restoration of temporarily filled or impacted areas shall include returning the area to pre-project ground surface contours. The permittee shall appropriately revegetate temporarily filled or impacted areas with native, noninvasive herbs, shrubs, and/or tree species sufficient in number, spacing, and diversity to replace affected aquatic functions.

Note: The Corps will determine compensatory mitigation requirements for temporary fills and impacts on a case-by-case basis depending on the duration and nature of the temporary fill or impact and the type of aquatic resource affected.

14. Contractor Notification of Permit Requirements. The permittee must provide a copy of the nationwide permit verification letter, conditions, and permit drawings to all contractors and any other parties performing the authorized work, prior to the commencement of any work in waters of the U.S.

15. Inspection of the Project Site: The permittee shall allow representatives of the District Engineer to inspect the authorized activity to confirm compliance with nationwide permit terms and conditions. A request for access to the site will normally be made sufficiently in advance to allow a property owner or representative the option to be on site during the inspection.

NATIONWIDE SPECIFIC CONDITIONS:

NWP 5 – Scientific Measurement Devices
1. Permittee shall remove all scientific measurement devices including all associated structures and fills including anchoring devices, buoys, and cables within 30 days after the device is no longer being used for its intended purpose.

NWP 6 – Survey Activities
1. The use of explosives in waters of the U.S. is not authorized by this NWP.
2. Permittee shall isolate all in-stream exploratory trenching from flowing water. NWP 12 – Utility Line Activities
1. Manholes placed in streams or other waterways require specific approval by the
District Engineer.

Note: To ensure there are no impacts to native shellfish beds, agency coordination by the Corps of Engineers is required where utility lines are proposed in estuaries.

NWP 13 – Bank Stabilization
1. Pre-construction notification, when required, must include photo documentation of the existing conditions at the proposed project site.

NWP 23 – Approved Categorical Exclusions
1. Pre-construction notification to the District Engineer is required for all activities.

NWP 29 – Residential Developments
1. The loss of waters of the U.S. associated with the construction or expansion of a single residence including attendant features (e.g., utility lines, roads, yards, etc) shall not exceed one-fourth (¼) acre.

2. Pre-construction notification must identify if the project is for the construction or expansion of a single residence, a multiple unit/subdivision residential development, or a phased residential development. For projects proposed within or associated with a multiple unit/subdivision residential development or a phased residential development, the pre-construction notification must identify any known previous Department of the Army (DA) authorizations received for the multiple unit/subdivision residential development or a phased residential development.

NWP 33 – Temporary Construction, Access, and Dewatering
1. Pre-construction notification to the District Engineer is required prior to commencing all activities conducted in waters of the U.S. (i.e. Section 10 and 404 waters). The pre- construction notification must include a restoration plan showing how all temporary fills and structures will be removed and the area restored to pre-project conditions.
 
NWP 39 – Commercial and Institutional Developments
1. Pre-construction notification must identify if the project is for the construction or expansion of a single commercial or institutional development, a multiple unit commercial or institutional development, or a phased commercial or institutional development. For projects proposed within or associated with a multiple unit or phased commercial or institutional development, the pre-construction notification must identify any known previous Department of the Army (DA) authorizations received for the multiple unit or phased development.

NWP 42 – Recreational Facilities
1. Pre-construction notification must identify if the project is for the construction or expansion of a single recreational facility, a multiple unit recreational facility, or a phased recreational facility development. For projects proposed within or associated with a multiple unit recreational facility or a phased recreational facility development, the pre- construction notification must identify any known previous Department of the Army (DA) authorizations received for the multiple unit or phased development.

NWP 43 – Stormwater Management Facilities
1. This NWP does not authorize the retention of water in excess of that required to meet stormwater management requirements. Unauthorized purposes include recreational lakes, reflecting pools, irrigation, etc.

NWP 44 – Mining Activities
1. In-stream mining, including bar scalping, is not authorized by this NWP.
2. The use of explosives in waters of the U.S. is not authorized by this NWP. NWP 48 – Commercial Shellfish Aquaculture Activities
Note: For projects involving commercial aquaculture or mariculture cultivation of oysters,
clams, and mussels on state-owned submerged and submersible lands, permittee is advised authorization may be required from the Oregon Department of Agriculture. For more information go to http://www.oregon.gov/oda/programs/foodsafety/pages/aboutfoodsafety.aspx.

NWP 52 – Water Based Renewable Energy Generation Pilot Projects
Note: Activities located within ocean waters may be subject to the siting requirements of the Oregon Territorial Sea Plan, which designates areas as suitable for such activities.
For more information go to http://www.oregon.gov/LCD/OCMP/Pages/Ocean_TSP.aspx.

Public Notice
Announcing the Reissuance of the Nationwide Permits

Download a printer-friendly pdf of this notice

Point of Contact: Judy Linton Issue Date:January 6, 2017
Phone: (503) 808-4382
Email: judy.l.linton@usace.army.mil

On January 6, 2017, the U.S. Army Corps of Engineers (Corps) published the notice in the Federal Register announcing the reissuance of all 50 existing nationwide permits (NWPs), general conditions, and definitions with some modifications.  The Corps also issued two new NWPs, one new general condition, and five new definitions.  The 2017 NWPs will go into effect on March 19, 2017, and will expire on March 18, 2022.

With the publication of this Federal Register notice, Corps districts will begin finalizing their regional conditions for the new and reissued NWPs.  Regional conditions will provide additional protection for the aquatic environment, and will help ensure that the NWPs authorize only those activities with no more than minimal adverse environmental effects.  Regional conditions will help ensure protection of high value waters within the Portland District.   

The publication of this Federal Register notice also begins the 60-day period for states, Tribes, and the Environmental Protection Agency (EPA) to complete their water quality certification (WQC) processes for the NWPs; the 60-day period for WQC will end on March 6, 2017.  This Federal Register notice also begins the 90-day period for coastal states to complete their Coastal Zone Management Act (CZMA) consistency determination processes; the 90-day period for CZMA consistency determinations will end on April 5, 2017.

If coastal states do not complete their CZMA consistency determination processes before the 2017 NWPs go into effect on March 19, 2017, the use of an NWP to authorize an activity within, or outside, a state’s coastal zone that will affect land or water uses or natural resources of that state’s coastal zone, is contingent upon obtaining an individual CZMA consistency determination, or a case-specific presumption of CZMA concurrence.

The January 6, 2017, Federal Register notice is available for viewing at the Portland District office (please contact District POC listed above) or on the Internet at
http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx .  As an alternative, interested parties can access the January 6, 2017, final rule that was published in the Federal Register through the U.S. Government Printing Office at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR.

The Corps has also issued final decision documents for the new and reissued
NWPs.  These documents are available at www.regulations.gov at docket number COE-2015-0017.  Furthermore, the national NWP decision documents will be supplemented by Division Engineers to address decisions concerning the addition of regional conditions to the NWPs.

Notice of Release of the Oregon Rapid Wetland Assessment Protocol (ORWAP) Version 3.1 
For the State of Oregon
Issue Date: December 6, 2016

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The Oregon Department of State Lands (Department) and the U.S. Army Corps of Engineers, Portland District (Corps of Engineers), jointly announce the publication and release of the revised Oregon Rapid Wetland Assessment Protocol (ORWAP) Version 3.1. ORWAP is a tool for rapidly assessing wetland functions and values (as well as other attributes) in all wetland types throughout Oregon. In a regulatory context, ORWAP also can be used to inform alternatives analysis and the selection, design, and monitoring of compensatory wetland mitigation sites. ORWAP, unlike some other methods, is particularly useful because it allows comparisons between different types of wetlands.

ORWAP and its applications were refined by the Department with funding assistance from the U.S. Environmental Protection Agency, Region 10 (EPA). ORWAP indicators and models were modified to reflect new information on wetland functions and values, and to improve its’ usability. ORWAP was applied to a new statistically valid sample of 200 wetlands across Oregon, which allowed ORWAP outputs to be calibrated and relative ratings to be developed. 

ORWAP consists of several different components: a Users Manual; two Excel spreadsheets (ORWAP Calculator and ORWAP Supplemental Information); and a Technical Supplement. The Department, the Corps of Engineers and EPA also cooperatively have developed a guide for using ORWAP for State and federal permit applications.

You may download all of the ORWAP components and the guidance for using ORWAP for permit applications from the Department’s Web site at:
http://www.oregon.gov/DSL/WETLAND/pages/or_wet_prot.aspx

Agency Requirements Regarding ORWAP

ORWAP may be used immediately for both State and federal permit purposes. ORWAP assessments conducted after February 1, 2017 for permit purposes must use version 3.1. Before using ORWAP v3.1 for the first time to assess a wetland for a permit application, read the revised Guidance for Using the Oregon Rapid Wetland Assessment Protocol (ORWAP) in the State and Federal Permit Programs (November 2016 ). This document provides instructions on how to select the assessment area, what to submit to the agencies along with the final scores, how to format the output in a permit application and other important information. The document is available at:
http://www.oregon.gov/dsl/WETLAND/docs/Guidance_for_Regulatory_Use_of_ORWAP_v3_1.pdf

State Removal-Fill Permits—ORWAP is an approved method for assessing wetlands for purposes of the State Removal-Fill Law. Administrative rules governing wetland functions and values assessment may be found in OAR 141-085-0685. These rules explain what type of wetland assessment method is required or allowed for different types of wetlands and impact levels. 

Federal Clean Water Act (Section 404) Permits—Use of ORWAP is recommended, but not required, by the Portland District Corps of Engineers. 

For additional guidance on using ORWAP for state and federal permits, contact:
Dan Hicks, Department of State Lands, 503-986-5320, Dana.Hicks@dsl.state.or.us
Andrea Wagner, Corps of Engineers, (541) 465-6882, andrea.r.wagner@usace.army.mil
Tracie Nadeau, EPA Region 10, 503-326-3685, nadeau.tracie@epa.gov

Public Notice
Permit Application Project Drawings

Issue Date: July 1, 2016

In recent months, the U.S. Army Corps of Engineers, Portland District, Regulatory Branch (Corps) has been receiving permit applications with project drawings that do not meet Corps requirements. Permit applications submitted with unacceptable drawings (e.g., illegible, omissions, incorrect format) will delay the processing of the application. Clear and accurate project drawings facilitate the prompt evaluation of the application. This public notice and the attached Drawing Checklist describes the requirements for project drawings.

The Corps’ regulations at 33 CFR Part 325.1(d) and Part 325.3 outline contents for a complete standard permit application and the information required to issue a Public Notice for the application. 33 CFR 325.1(d) states “the application must include a complete description of the proposed activity including necessary drawings, sketches, or plans sufficient for public notice (detailed engineering plans and specifications are not required)”. Drawings in this format should also be submitted with applications for Nationwide Permits.

The general guidelines for project drawings are as follows:
1) Drawings must be on 8 ½- by 11-inch paper.
2) Drawings must be in black and white or reproducible in black and white.
3) Drawings must include a vicinity map or maps with two views: a) where the project is in the state and b) and the location in relation to landmarks, streets or other points of reference near the site.
4) Drawings must be to scale. Use a graphic scale.
5) Drawings must clearly show the project area(s) with clear project boundaries.
6) Drawings must have a North arrow, as appropriate.
7) Drawings should clearly distinguish between existing and proposed conditions.

More detailed information is provided in the attached Drawing Checklist. This checklist will be used when reviewing applications. Permit applications will be deemed incomplete if the drawings provided do not meet all the requirements.

For expeditious processing of your permit application submittal, please adhere to the following: 
1) Do not use binding or laminating techniques other than paper clips or binder clips.
2) Confirm the drawings are legible and the maps clearly identify the project location.
3) Use either all double-sided or all single-sided paper (double-sided is preferable). Please do not mix single-sided and double-sided throughout your submittal.
4) The submittal package should be entirely on 8 ½- by 11-inch paper.

Submitting clear and accurate permit application drawings will reduce the need for the Corps to request revisions, resulting in timely permit processing. The maps, drawings, and other figures are included in our public notices, and they must illustrate the project in sufficient detail at the specified paper size. Finally, if a permit is issued, it will include the project maps, drawings, and figures, which will be incorporated in the permit by reference. Permittees are required to implement the project in accordance with the approved drawings. Complete and accurate project drawings ensures the Corps and permittee have a clear and shared understanding of the authorize work and thus reduces permit non-compliance issues.

Printer-friendly pdf versions of this document and enclosure are available below:
NWP Permit Application Project Drawings Public Notice
Enclosure - Permit Applications Drawing Checklist

Issue Date: February 25, 2016

The U.S. Army Corps of Engineers (Corps), Seattle, Walla Walla, and Portland districts and the U.S. Environmental Protection Agency, Region 10 (EPA) jointly announce the availability of the Streamflow Duration Assessment Method (SDAM) for the Pacific Northwest (dated November 2015).  The method is a rapid assessment tool to help document streamflow duration and distinguish between ephemeral, intermittent, and perennial streams. The SDAM may help in providing technical guidance for identifying waters that may be subject to regulatory jurisdiction under Section 404 of the Clean Water Act; however this method does not affect the definition of “Waters of the U.S.”

This announcement extends the applicability of this tool to the Pacific Northwest. SDAM was developed for use in the state of Oregon by the Corps, EPA, and the Oregon Department of State Lands in 2011. This current method results from a validation study conducted in two phases on 264 stream reaches across the range of hydrologic landscapes of Oregon, Idaho, and Washington from 2008 to 2012. Developed through statistical analyses of field data, it provides a simplified approach using seven reliable indicators to provide information on streamflow duration.

The SDAM can be applied whenever there is uncertainty regarding streamflow duration and a rapid method of evaluation is desired. The method provides a scientifically supported, rapid assessment framework to support best professional judgment in a consistent, robust, repeatable and defensible way. Use of the method may result in more timely and predictable jurisdictional determinations, and is also useful where knowledge of streamflow duration improves ecological assessment, management, and decision-making.

The method and data forms are available on the internet at:
www.epa.gov/measurements/streamflow-duration-assessment-method-pacific-northwest

For additional information, contact the Corps or the EPA:

Corps
Portland District, Peter Olmstead, 541-962-0401, Peter.D.Olmstead@usce.army.mil
Seattle District, Jess Jordan, 206-316-3967, Dale.J.Jordan@usace.army.mil
Walla Walla District, Robert Brochu, 208-522-1645, Robert.A.Brochu@usace.army.mil or Christen Marve Griffith, 208-433-4470, Christen.M.Griffith@usace.army.mil

EPA
Tracie Nadeau, 503-326-3685, Nadeau.Tracie@epa.gov