Attachment 10 - DSL Removal Fill Permit.pdf

Kate Brown, Governor

Oregon Department of State Lands

775 Summer Street NE, Suite 100

Salem, OR 97301-1279

(503) 986-5200

FAX (503) 378-4844

www.oregon.gov/dsl

State Land Board

Kate Brown

Governor

Shemia Fagan

Secretary of State

Tobias Read

State Treasurer

BEFORE THE DIRECTOR OF THE DEPARTMENT OF

STATE LANDS OF THE STATE OF OREGON

In the Matter of Removal-Fill Permit ) Application 63888-RF ) Proposed Permit Decision and Order;

) Notice of Right to a Hearing By US Army Corps Of Engineers, Portland District )

Short and Plain Statement of the Permitting Decision: The permit application is approved because the Department of State Lands (DSL or the Department) has determined that, when carried out in compliance with all terms and conditions outlined in the permit, the proposed removal-fill activity is consistent with the protection, conservation, and best use of the water resources of this state and will not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing, and recreation. See ORS 196.825.

I. Applicable Law:

a. ORS Chapter 196 governs removal fill permits in Oregon. The Department administers

Oregon’s Removal-Fill Law, Oregon Revised Statutes (ORS) 196.795 to ORS 196.990, which protects the state’s wetlands and waterways. See ORS 196.805. Unless an exception applies, a person may not remove material from waters of this state or fill waters of this state without a permit from DSL. ORS 196.810. Waters of this state include the all-natural waterways, tidal and non-tidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, the Pacific Ocean that is in the boundaries of this state, and other water bodies.

ORS 196.800; Oregon Administrative Rule (OAR) 141-085-0515; OAR 141-093-0100.

b. Specifically, the statutes that govern removal-fill permits in Oregon, including the permit application at issue in this case, generally include the following:

ORS 196.795 (Administration of State Removal or Fill Permits; General Permits);

ORS 196.800 (Definitions);

ORS 196.805 (Policy);

ORS 196.810 (Removal from Bed or Banks of Waters; Permits; Exceptions);

ORS 196.812 (Removal of Large Woody Debris);

ORS 196.815 (Permit Applications; Fees);

ORS 196.816 (Removal of Materials for Purpose of Maintaining Drainage and Protecting Agricultural Land);

ORS 196.817 (Removal or Fill General Permits);

ORS 196.818 (Wetland Delineation Reports; Fees);

ORS 196.820 (Smith Lake, Bybee Lake Prohibition);

ORS 196.825 (Permit Criteria; Consultation with Other Agencies);

ORS 196.830 (Estuarine Resource Replacement; Other Permit Conditions);

ORS 196.835 (Issuance of Permits; Procedure);

ORS 196.845(Investigations and Surveys of Location); and

ORS 196.850 (Waiver of Permit Requirement; Notice; Review).

The full text of these statutes may be viewed online at:

https://www.oregonlegislature.gov/bills_laws/ors/ors196.html.

The full text of these statutes may also be inspected in person during normal business hours at:

775 Summer St NE STE 100 Salem, OR 97301.

c. OAR Chapter 141, Division 85 implement the above statutory scheme and govern removal-fill permits in Oregon. The rules that govern removal-fill permits in Oregon, including the permit application at issue in this case, generally include the following:

Div. 85 Removal-Fill Authorizations:

OAR 141-085-0500 (General);

OAR 141-085-0506 (Policy);

OAR 141-085-0510 (Definitions);

OAR 141-085-0515 (Removal-Fill Jurisdiction by Type of Water);

OAR 141-085-0520 (Removal-Fill Jurisdiction by Volume of Material);

OAR 141-085-0525 (Measuring and Calculating Volume of Removal and Fill);

OAR 141-085-0530 (Exemptions for Certain Activities and Structures);

OAR 141-085-0534 (Exemptions for Certain Voluntary Habitat Restoration Activities):

OAR 141-085-0535 (Exemptions Specific to Agricultural Activities);

OAR 141-085-0540 (Types of Authorizations);

OAR 141-085-0545 (Fees; Amounts and Disposition);

OAR 141-085-0550 (Application Requirements for Individual Permits);

OAR 141-085-0555 (Individual Removal-Fill Permit Application Review Process);

OAR 141-085-0560 (Public Review Process for Individual Removal - Fill Permit Applications);

OAR 141-085-0565 (Department Determinations and Considerations in Evaluating Individual Permit Applications);

OAR 141-085-0575 (Permit Appeals);

OAR 141-085-0580 (Discovery in Contested Cases);

OAR 141-085-0585 (Permit Conditions, Permit Expiration Dates and Permit Transfer);

OAR 141-085-0590 (Renewal and Extension of Individual Removal-Fill Permits);

OAR 141-085-0595 (Permit Requirements and Interagency Coordination for Department of Environmental Quality Approved Remedial Action, Corrections Facilities, Solid Waste Land Fills and Energy Facilities);

OAR 141-085-0665 (Expedited Process for Industrial or Traded Sector Sites);

OAR 141-085-0676 (Emergency Authorizations);

OAR 141-085-0680 (Compensatory Mitigation (CM); Applicability and Principal Objectives);

OAR 141-085-0685 (Functions and Values Assessment);

OAR 141-085-0690 (Eligibility Requirements for CM);

OAR 141-085-0692 (Mitigation Accounting);

OAR 141-085-0694 (Special Requirement for CM);

OAR 141-085-0695 (Administrative Protection of CM Sites);

OAR 141-085-0700 (Financial Security for CM Sites);

OAR 141-085-0705 (Requirements for CM Plans);

OAR 141-085-0710 (Monitoring Requirements for CWM);

OAR 141-085-0715 (Mitigation for Temporary Impacts);

https://www.oregonlegislature.gov/bills_laws/ors/ors196.html

OAR 141-085-0720 (Mitigation Banking Purpose, Applicability and Policies);

OAR 141-085-0725 (Process for Establishing Mitigation Banks);

OAR 141-085-0730 (Establishment of Mitigation Credits);

OAR 141-085-0735 (Release, Use and Sale of Mitigation Credits);

OAR 141-085-0740 (Authorization for Mitigation Banks);

OAR 141-085-0745 (In-Lieu Fee Mitigation);

OAR 141-085-0750 (Payments to and Expenditures from the Oregon Removal-Fill Mitigation Fund);

OAR 141-085-0755 (Advance Mitigation); and OAR 141-085-0768 (Advance Aquatic Resource Plans).

The full text of these rules may be viewed online at:

https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=15700.

The full text of these rules may also be inspected in person during normal business hours at:

775 Summer St NE STE 100

II. Findings of Fact and Findings of Ultimate Fact:

1. The Department received a complete, written application from applicant on July 29, 2022 for the proposed removal-fill activity consisting of upgrades to fish passage facilities at Dexter Dam on the Middle Fork of the Willamette River.

2. The Department circulated the complete application for 30-day public comment period August 10, 2022 to September 08, 2022, to parties including, affected local, state and federal agencies, affected tribal governments, adjacent landowners, and other parties requesting notification.

3. There were no comments that required a response to the Department.

4. Based on all the information in the agency file in this matter, including the complete application, comments received, applicant response to comments, and the agency’s own investigations, the Department concludes as to the determinations in ORS 196.825(1) and (4), OAR 141-085-0565(3), and OAR 141-093-0115:

a. The project described in the permit application and as conditioned in the proposed permit, is consistent with the protection, conservation, and best use of the water resources of this state as specified in ORS 196.600 to 196.905;

b. The project described in the permit application and as conditioned in the proposed permit would not interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing, and public recreation.

5. Based on all the information in the agency file in this matter, including the complete application, comments received, applicant response to comments, and the agency’s own investigations, the Department concludes, as to the considerations in ORS 196.825(3), OAR 141-085-0565(4), OAR 141-093-0115.

a. The applicant is a public body and the Department has relied upon the public body’s findings as to local public need and local public benefit.

https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=15700

b. There is not an identified economic cost to the public if the proposed fill or removal is not accomplished.

c. The application describes no alternatives to the project for which the fill or removal is proposed because the fish facility must be at the current location to pass fish around the dam. There are no practicable alternatives with lesser impact to waters of this state.

d. The application describes no alternative sites for the proposed removal or fill because of the US District Court of Oregon ordered an interim injunction which required certain actions. There are no practicable alternative sites with lesser impact to waters of this state.

e. The proposed project conforms to sound policies of conservation because adverse effects to the aquatic resources have been reduced to the extent practicable and the proposed permit contains operating conditions for best management practices to further minimize adverse effects. No interference with public health and safety was identified in the application evaluation and public review processes.

f. There is not a conflict with existing public uses of the affected waters or adjacent land uses identified in the application evaluation and public review processes.

g. The proposed fill or removal is compatible with the governing comprehensive plan and land use regulations as described in the Land Use Compatibility Statement

h. The proposed fill and removal is not for streambank protection.

i. No permanent adverse effects to aquatic resources are expected, therefore, compensatory mitigation is not required.

III. Conclusions of Law:

Based on the factors laid out in ORS Chapter 196 and OAR Chapter 141, Division 85, including ORS 196.825, OAR 141-085-0565, and OAR 141-093-0115, DSL should approve the permit application as conditioned in the proposed permit.

IV. Proposed Order:

The Department proposes approving the permit application with conditions and based on the factors laid out in ORS Chapter 196 and OAR Chapter 141, Division 85, including ORS 196.825, OAR 141-085-0565 and OAR 141-093-0130.

As described below, you have the right to request a hearing within 21 days. Prior to the expiration of the 21-day period, this proposed permit decision is not the final agency order on the matter, and the permittee should be aware that the decision could be changed prior to the expiration of the 21-day appeal period—either because the permittee requests a contested case hearing, or as otherwise allowed under the removal fill law. A permittee who begins work under a permit prior to issuance of a final order does so with acceptance of this risk.

V. Hearing:

You are entitled to request a hearing based on this Proposed Order as provided by the Oregon Administrative Procedures Act (ORS chapter 183) and the administrative rules implementing the Administrative Procedures Act, OAR Chapter 137, Division 3. See ORS 196.825(7);

OAR 141-001-0005; OAR 141-001-0010; OAR 141-085-0575; OAR 141-093-0130.

If you want a hearing, you must file a written request for a hearing with the Department no later than 21 calendar days from the date of the permit decision. See ORS 196.825(7);

OAR 141-085-0575; OAR 141-093-0130. If you are a corporation, partnership, limited liability company, unincorporated association, trust, or government body, you must either have an attorney licensed to practice law in Oregon submit a request for a contested case hearing on your behalf or ratify your hearing request within 28 days. See OAR 137-003-0550.

The Department has determined that due to the complexity of removal-fill permitting, a general denial of the matters or a general objection to all permit conditions in the request for a contested case proceeding does not provide sufficient information for a fair and efficient contested case and a more specific request is warranted. OAR 141-085-0575. All requests for a contested case proceeding under this section shall include a specific list of issues for the contested case proceeding. OAR 141-085-0575. The requester may amend their request to include additional issues or clarify existing issues within 15 days of the date that the case is referred to the Office of Administrative Hearings. OAR 141-085-0575.

You may mail a request for a hearing to:

Department of State Lands Aquatic Resource Management Program 775 Summer Street NE STE 100

If you request a hearing, you will be notified of the time and the place of the hearing. See OAR 137-003-0525. You may be represented by legal counsel at the hearing. ORS 183.417; OAR 137-003-0550. Corporations, partnerships, limited liability companies, unincorporated associations, trusts and government bodies must be represented by an attorney except as provided in OAR 137-003-0555 or as otherwise authorized by law. OAR 137-003-0550. Legal aid organizations may be able to represent you if you have limited financial resources. You will be given information on the procedures, right of representation, and other rights of parties relating to the substance and conduct of the hearing before commencement of the hearing.

See ORS 183.413.

VI. Jurisdiction and Authority to Hold a Hearing:

The Department has jurisdiction over the issuance of removal-fill permits pursuant to ORS Chapter 196, and specifically, ORS 196.810. A permit decision constitutes an order in a contested case. See ORS 183.310(2)(a); ORS 196.825(7). If timely requested, a hearing is held as laid out in ORS 183.411 to ORS 183. 471, OAR Chapter 137, Division 3, ORS Chapter 196, and OAR Chapter 141, Division 85. ORS 196.825(7).

VII. Final Order and Defaults:

If a request for a hearing is not received by the Department within this 21-day period, your right to a hearing shall be waived and this Proposed Order shall become the Final Order by default.

See ORS 196.825(7); OAR 141-085-0575; OAR 141-093-0130.

If you request a hearing and then either withdraw your hearing request, notify the Department or administrative law judge that you will not appear, or fail to appear at a scheduled hearing, the Department may issue a final order by default. See ORS 183.417.

If the Department issues a final order by default, it designates its file on this matter, including any materials submitted by you that relate to this matter, as the record for purposes of supporting its decision.

If you proceed to a contested case hearing, a Final Order will not be issued until after the hearing concludes. See ORS 183.464; OAR 141-085-0575; OAR 141-093-0130.

VIII. Federal Servicemembers Civil Relief Act:

Active duty servicemembers have a right to stay contested case proceedings under the federal Servicemembers Civil Relief Act. See generally 50 USC 3901 et seq. For more information, contact the Oregon State Bar (800-452-8260), the Oregon Military Department (503-584-3571), or the nearest United States Armed Forces Legal Assistance Office (http://legalassistance.law.af.mil). The Oregon Military Department does not have a toll-free telephone number.

Department of State Lands 775 Summer Street, Suite 100 Salem, OR 97301-1279 503-986-5200

Permit No.: 63888-RF

Permit Type: Removal/Fill

Waters: Middle Frk. Willamette R.

County: Lane

Expiration Date: 11/30/2027

US ARMY CORPS OF ENGINEERS,

PORTLAND DISTRICT

IS AUTHORIZED IN ACCORDANCE WITH ORS 196.800 TO 196.990 TO PERFORM THE

OPERATIONS DESCRIBED IN THE REFERENCED APPLICATION, SUBJECT TO THE SPECIAL

CONDITIONS LISTED ON ATTACHMENT A AND TO THE FOLLOWING GENERAL CONDITIONS:

1. This permit does not authorize trespass on the lands of others. The permit holder must obtain all necessary access permits or rights-of-way before entering lands owned by another.

2. This permit does not authorize any work that is not in compliance with local zoning or other local, state, or federal regulation pertaining to the operations authorized by this permit. The permit holder is responsible for obtaining the necessary approvals and permits before proceeding under this permit.

3. All work done under this permit must comply with Oregon Administrative Rules, Chapter 340;

Standards of Quality for Public Waters of Oregon. Specific water quality provisions for this project are set forth on Attachment A.

4. Violations of the terms and conditions of this permit are subject to administrative and/or legal action, which may result in revocation of the permit or damages. The permit holder is responsible for the activities of all contractors or other operators involved in work done at the site or under this permit.

5. Employees of the Department of State Lands (DSL) and all duly authorized representatives of the Director must be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this permit.

6. Any permit holder who objects to the conditions of this permit may request a hearing from the Director, in writing, within twenty-one (21) calendar days of the date this permit was issued.

7. In issuing this permit, DSL makes no representation regarding the quality or adequacy of the permitted project design, materials, construction, or maintenance, except to approve the project’s design and materials, as set forth in the permit application, as satisfying the resource protection, scenic, safety, recreation, and public access requirements of ORS Chapters 196, 390, and related administrative rules.

8. Permittee must defend and hold harmless the State of Oregon, and its officers, agents and employees from any claim, suit, or action for property damage or personal injury or death arising out of the design, material, construction, or maintenance of the permitted improvements.

9. Authorization from the U.S. Army Corps of Engineers may also be required.

NOTICE: If removal is from state-owned submerged and submersible land, the permittee must comply with leasing and royalty provisions of ORS 274.530. If the project involves creation of new lands by filling on state-owned submerged or submersible lands, you must comply with ORS 274.905 to 274.940 if you want a transfer of title; public rights to such filled lands are not extinguished by issuance of this permit. This permit does not relieve the permittee of an obligation to secure appropriate leases from DSL, to conduct activities on state-owned submerged or submersible lands. Failure to comply with these requirements may result in civil or criminal liability. For more information about these requirements, please contact Department of State Lands, 503-986-5200.

Patricia Fox, Southern Operations Manager Aquatic Resource Management

Authorized Signature

ATTACHMENT A

Permit Holder: US Army Corps of Engineers, Portland District

Project Name: Dexter Fish Facility Upgrade

Special Conditions for Removal/Fill Permit No. 63888-RF

READ AND BECOME FAMILIAR WITH CONDITIONS OF YOUR PERMIT.

The project site may be inspected by the Department of State Lands (DSL) as part of our monitoring program. A copy of this permit must be available at the work site whenever authorized operations are being conducted.

1. Responsible Party: By signature on the application, Christopher M. Page is acting as the representative of US Army Corps of Engineers,Portland District. By proceeding under this permit, US Army Corps of Engineers, Portland District agrees to comply with and fulfill all terms and conditions of this permit, unless the permit is officially transferred to another party as approved by DSL. In the event information in the application conflicts with these permit conditions, the permit conditions prevail.

2. Authorization to Conduct Removal and/or Fill: This permit authorizes 385 linear feet of waterway impact(s) with associated removal and fill of material in T19S R01W Section 09, on a Non-Tax Lot, US Army Corps property and in water, in Lane County, as referenced in the application, map and drawings (See Attachment B for project location(s)), dated November 16, 2022.

3. Work Period in Jurisdictional Areas: Fill or removal activities below the ordinary high water elevation of Middle Fork Willamette River must be conducted only during times coordinated with Oregon Department of Fish and Wildlife and approved in writing by DSL. If fish eggs are observed within the project area, work must cease, and DSL contacted immediately.

4. Changes to the Project or Inconsistent Requirements from Other Permits: It is the permittee’s responsibility to ensure that all state, federal and local permits are consistent and compatible with the final approved project plans and the project as executed. Any changes made in project design, implementation or operating conditions to comply with conditions imposed by other permits resulting in removal-fill activity must be approved by DSL prior to implementation.

5. DSL May Halt or Modify: DSL retains the authority to temporarily halt or modify the project or require rectification in case of unforeseen adverse effects to aquatic resources or permit non-compliance.

6. DSL May Modify Conditions Upon Permit Renewal: DSL retains the authority to modify conditions upon renewal, as appropriate, pursuant to the applicable rules in effect at the time of the request for renewal or to protect waters of this state.

Attachment A

63888-RF

Pre-Construction

7. Stormwater Management Approval Required Before Beginning Work: Prior to the start of construction, the permittee must obtain a National Pollution Discharge Elimination System (NPDES) permit from the Oregon Department of Environmental Quality (DEQ), if one is required by DEQ.

General Construction Conditions

8. Water Quality Certification: The Department of Environmental Quality (DEQ) may evaluate this project for a Clean Water Act Section 401 Water Quality Certification (WQC). If the evaluation results in issuance of a Section 401 WQC, that turbidity condition will govern any allowable turbidity exceedance and monitoring requirements.

9. Erosion Control Methods: The following erosion control measures (and others as appropriate) must be installed prior to construction and maintained during and after construction as appropriate, to prevent erosion and minimize movement of soil into waters of this state.

a. All exposed soils must be stabilized during and after construction to prevent erosion and sedimentation.

b. Filter bags, sediment fences, sediment traps or catch basins, leave strips or berms, or other measures must be used to prevent movement of soil into waterways and wetlands.

c. To prevent erosion, use of compost berms, impervious materials or other equally effective methods, must be used to protect soil stockpiled during rain events or when the stockpile site is not moved or reshaped for more than 48 hours.

d. Unless part of the authorized permanent fill, all construction access points through, and staging areas in, riparian and wetland areas must use removable pads or mats to prevent soil compaction. However, in some wetland areas under dry summer conditions, this requirement may be waived upon approval by DSL. At project completion, disturbed areas with soil exposed by construction activities must be stabilized by mulching and native vegetative plantings/seeding. Sterile grass may be used instead of native vegetation for temporary sediment control. If soils are to remain exposed more than seven days after completion of the work, they must be covered with erosion control pads, mats or similar erosion control devices until vegetative stabilization is installed.

e. Where vegetation is used for erosion control on slopes steeper than 2:1, a tackified seed mulch must be used so the seed does not wash away before germination and rooting.

f. Dredged or other excavated material must be placed on upland areas having stable slopes and must be prevented from eroding back into waterways and wetlands.

g. Erosion control measures must be inspected and maintained as necessary to ensure their continued effectiveness until soils become stabilized.

h. All erosion control structures must be removed when the project is complete, and soils are stabilized and vegetated.

10. Fuels, Hazardous, Toxic, and Waste Material Handling: Petroleum products, chemicals, fresh cement, sandblasted material and chipped paint, material treated with leachable preservatives or other deleterious waste materials must not be allowed to enter waters of this state. Machinery and equipment staging, cleaning, maintenance, refueling, and fuel storage must be at least 150 feet from OHW or HMT and wetlands to prevent contaminates from entering waters of the state.

Refueling is to be confined to a designated area to prevent spillage into waters of this state.

Barges must have containment system to effectively prevent petroleum products or other deleterious material from entering waters of this state. Project-related spills into waters of this state or onto land with a potential to enter waters of this state must be reported to the Oregon Emergency Response System (OERS) at 1-800-452-0311.

11. Archaeological Resources: If any archaeological resources, artifacts or human remains are encountered during construction, all construction activity must immediately cease. The State Historic Preservation Office must be contacted at 503-986-0674. You may be contacted by a Tribal representative if it is determined by an affected Tribe that the project could affect Tribal cultural or archeological resources.

12. Hazards to Recreation, Navigation or Fishing: The activity must be timed so as not to unreasonably interfere with or create a hazard to recreational or commercial navigation or fishing.

13. Operation of Equipment in the Water: Heavy equipment may be positioned below ordinary high water only if the area is isolated from the waterway and aquatic organism salvage is completed.

All machinery operated below ordinary high water (OHW) elevation must use vegetable-based hydraulic fluids, be steam cleaned and inspected for leaks prior to each use, and be diapered to prevent leakage of fuels, oils, or other fluids below OHW elevation. Any equipment found to be leaking fluids must be immediately removed from and kept out of OHW until repaired.

14. Work Area Isolation: The work area must be isolated from the water during construction by using a coffer dam or similar structure in accordance with the work area isolation plan in the application and addenda. All structures and materials used to isolate the work area must be removed immediately following construction and water flow returned to pre-construction conditions.

15. Fish Salvage Required: Fish must be salvaged from the isolation area. Permits from NOAA

Fisheries and Oregon Department of Fish and Wildlife, Fish Research are required to salvage fish.

Fish salvage permit information may be obtained by contacting ODFW Fish Research at 503-947-6254 or Fish.Research@state.or.us.

16. Fish Passage Required: The project must meet Oregon Department of Fish and Wildlife requirements for fish passage, as required in ORS 509.585. Contact the local ODFW District Fish Biologist to ensure your project meets the state’s fish passage requirements.

17. Raising or Redirecting Water: The project must not cause water to rise or be redirected and result in damage to structures or property on the project site as well as adjacent, nearby, upstream, and downstream of the project site.

18. Temporary Ground Disturbances: All temporarily disturbed areas must be returned to original ground contours at project completion.

Riprap Placement

19. Riprap Placement Methods: Riprap/rock must be placed under the following conditions:

a. Only clean, erosion resistant rock from an upland source must be used as riprap. No broken concrete or asphalt must be used.

b. Riprap rock must be placed in a manner that does not increase the upland surface area.

mailto:Fish.Research@state.or.us

c. Riprap must be placed in a way as to minimize impacts to the active stream channel.

d. Gravel or filter fabric should be placed behind the riprap rock, including the toe trench rock, as a filter blanket.

e. All riprap rock must be placed, not dumped, from above the bank line.

20. Riprap Must Be Covered: Riprap above ordinary high water elevation must be covered and the voids filled with soil, gravel, and / or mulch sufficient to allow vegetation to be established and for wildlife to move across it naturally.

ATTACHMENT B

Permit Holder: US Army Corps of Engineers, Portland District

Project Name: Dexter Fish Facility Upgrade

Maps and Drawings for Removal/Fill Permit No. 63888-RF

Attachment B