We need your comments on Wal-Mart's permit application. The permit is located at: http://docs.dsl.state.or.us/PublicReview/docview.aspx?id=886725&&dbid=0
COMMENTS on WalMart’s application for a state wetland
fill permit ARE DUE ON OR BEFORE February 14, 2011. Comments can be submitted by either FAX
or Mail. Comments should be addressed
to:
Sarah Kelly, Oregon DSL, 1645 N.E. Forbes Road, Suite 112, Bend, OR 97701 The FAX # there is: 503-378-4844 Comments from a wetland scientist: LEYDA CONSULTING, INC. P R OF E S S IONA L WE T L AND S C I ENC E 2405 East Ninth Street • Vancouver, Washington, 98661 • (360) 510-2737 • www.leydaconsulting.com February 8, 2011 To: Karl Anuta Law Office of Karl Anuta 735 SW First Avenue, 2nd Floor Portland, Oregon 97204 RE: Expected Ecological Effects of the Wal-Mart Wetland Destruction Proposal DSL Joint Permit Application No. 43798 The Dalles, Wasco County, Oregon Mr. Anuta: Leyda Consulting, Inc., (LCI) presents this technical memorandum with our review of the ecological effects of the proposed wetland and ecological destruction associated with the application to construct a Wal-Mart SuperCenter on River Road (2N13E28, Lot 2 of Tax Lot 702; T02N R13E S28 SW of NW ¼ [BC or 23]). The applicant proposes to destroy 2.174 acres of vernal pool wetlands to construct the facility. This memorandum includes a discussion of the ecological significance of the vernal pool wetlands, the risks of attempting to re-create these rare features, and the known ecological effects of treated stormwater on wetlands and aquatic systems. Information about the proposed project was obtained from JPA 43798 received by the Oregon Department of State Lands (DSL) on December 17, 2010; the Wetland Delineation Report by Environmental Science & Assessment, LLC (dated May 2009); peer-reviewed scientific literature; government reports; conference proceedings; common knowledge of wetland science and other sources as documented. Executive Summary 1. Vernal pool wetlands are unique ecological features and are different from other depressional wetlands. They are defined by (1) Source of water. (2) Duration of the inundation and waterlogged phases. (3) Timing of these phases. 2. The vernal pool wetlands proposed for destruction at the Wal-Mart site represent approximately 14 percent of the landscape; the surrounding upland buffers represent approximately 86 percent of the landscape. 3. The proposed wetland mitigation plan will not replace the ecological functions of the vernal pool wetlands proposed for destruction. The percentage of wetlands in the mitigation area is too dense to replicate the existing ecological functions of the vernal pool wetlands. Insufficient upland buffers in the mitigation area will limit the ecological functions of the vernal pool wetlands proposed for construction. 4. The lack of a proper water budget for the mitigation area created vernal pools substantially increases the risk of project failure. 5. The destruction of the existing vernal pool wetlands may affect a federally listed threatened fairy shrimp species known to occur in Oregon by destroying potential habitat that could be colonized if numbers increase in the future. 6. The treated stormwater discharges will change the hydrologic regime and harm the natural wetlands by replacing precipitation-driven hydrology with runoff-driven hydrology. 7. The stormwater that will be routed into the mitigation area contains pollution that will harm the wetlands and potentially downstream waters. A portion of the stormwater that will enter the proposed mitigation area will be untreated, and will contain contaminants like copper and hydrocarbons like oil. 8. The proposed stormwater system and mitigation success depends on structures, devices, and/or maintenance that cannot be guaranteed or enforced over time, and will allow pollution or water level fluctuations that will eventually harm the mitigation area created vernal pool wetlands. Qualifications & Education As a certified Professional Wetland Scientist (Ecological Society of America) and Certified Ecologist (Ecology Society of America), I am well qualified to evaluate the consequential effects the proposed project would perpetuate at this location. I completed my master’s degree in biology from the College of William & Mary in Virginia as a foundation for this work. During my ten years as a wetland consultant, I have worked on projects in the Pacific Northwest from as far south as Gold Beach, Oregon, to as far north as Point Roberts, Washington, and specifically worked on projects in The Dalles area. I have delineated hundreds of wetlands and tied thousands of wetland flags that have been approved by agencies such as the Oregon Department of State Lands, U.S. Army Corps of Engineers, Washington Department of Ecology, and numerous local governments. I have authored and worked on dozens of wetland, riparian, and upland restoration and mitigation plans. I am trained and experienced in ecological assessment, including the Oregon Rapid Wetland Assessment Protocol. Past clients in Oregon include public agencies such as the Oregon Department of Corrections, Oregon Military Department, Oregon Department of Human Services, Medford School District, City of Coos Bay, City of Forest Grove, City of Florence, Seal Rock Water District, and City of Albany, among others. My work as an ecologist began with graduate-level training and research experience in aquatic ecology, aquatic entomology, community ecology, and tropical stream ecology. My wildlife biology experience includes trapping and collaring black-tailed deer for the Oregon Department of Fish & Wildlife; writing biological evaluations and habitat reviews for great blue herons, beavers, fishers, salmonids, bald eagles, osprey and other species; and monitoring endangered species. Furthermore, I have been licensed by the federal government and three states as a falconer, which requires extensive knowledge of bird of prey ecology, behavior, and husbandry. I have worked as a hack site attendant for the National Avian Research Centre of Abu Dhabi in Carmarthen, Wales, United Kingdom, radio tracking, caring for, raising, training, and hunting falcons such as peregrine falcons, gyrfalcons, and the rare and endangered New Zealand falcon. I have also published works on the subject, specifically having written a chapter on the biology of raptor vision in the book Best of Falconer’s World (2004), among others. Currently the President of Leyda Consulting, Inc., I have extensive experience working under structural and civil engineers and have been trained in stormwater system design. My professional specialization is in modeling wetland hydrology for created wetlands. My project experience has included designing water quality monitoring systems, wildlife road crossing structures, and in-stream structures. I have reviewed designs of stormwater filter cartridge systems for use in urban areas that discharge to sensitive oligotrophic lake systems for civil engineers. I have also worked as Natural Resource Division Manager and Environmental Department Head at two engineering firms. A. Ecological Significance of Vernal Pool Wetlands 1. Definition of a “vernal pool wetland.” Vernal pool wetlands are defined in a widely used wetland textbook as “shallow, intermittently flooded wet meadow, generally dry for most of the summer and fall.”1 However, many definitions of vernal pool wetlands can be found in the literature. Vernal pools “range from 50m2 to about 0.5 hectare in size and typically comprise less than 10 percent of a given landscape (A. Huffman, personal communication). They are wet in the cool winter and spring, when there is a bloom of plant life, invertebrates, and migratory waterfowl, but they are generally dry during the warm summer months (Zedler, 1987). Vernal pools, although described as occurring throughout the country by some, are classically defined as seasonally flooded wetlands associated with a Mediterranean-type climate of wet winters and dry summers.”2 Vernal pool wetlands are found worldwide in different forms.3 Vernal pools in the eastern US are often groundwater fed4; however, in the western US, these are often exclusively precipitation fed. “By definition, vernal pools fill primarily through the direct interception of precipitation on impermeable substrates (Ferren et al., 1995). Field observation[s] also indicate that vernal pool micro-watersheds do not contribute significant volumes of water to pools during most precipitation events.”5 “Vernal pools are small precipitation-fed depressional wetlands set in a landscape of high topographic microrelief consisting of mounds; depressions of various sizes, shapes, and depths; and connecting swales (Smith & Verrill, 1998).”6 “…Three elements are needed to define the vernal pool habitat: (1) Source of water. (2) Duration of the inundation and waterlogged phases. (3) Timing of these phases. Thus, we define vernal pools as ‘precipitation-filled seasonal wetlands inundated during periods when temperature is sufficient for plant growth, followed by a brief waterlogged-terrestrial stage and culminating in extreme desiccating soil conditions of extended duration.’”7 ___________________________________________________________________ 1 Mitsch, W.J. and J.G. Gosselink. Wetlands. Second Edition. Van Nostrand Reinhold, 1993. pp. 32. 2 Mitsch, W.J. and J.G. Gosselink. Wetlands. Second Edition. Van Nostrand Reinhold, 1993. pp. 335-336. Zedler, P.H., 1987, The Ecology of Southern California Vernal Pools: A Community Profile, Biological Report 85(7.11), U.S. Fish and Wildlife Service, Washington, D.C. NTIS. 3 Zedler, Paul. Vernal pools and the concept of isolated wetlands. Wetlands. Vol. 23, No. 3, Sept. 2003, p. 598. 4 Zedler, Paul. Vernal pools and the concept of isolated wetlands. Wetlands. Vol. 23, No. 3, Sept. 2003, p. 598. 5 Pike, Christopher. Simulating vernal pool hydrologic regimes for two locations in California, USA. Ecological Modelling 173 (2004) pp. 109–110. 6 Bauder, E.T. The effects of an unpredictable precipitation regime on vernal pool hydrology. Freshwater Biology (2005) 50, p. 2130. 7 Pages 1-14 in: C.W. Witham, E.T. Bauder, D. Belk, W.R. Ferren Jr., and R. Ornduff (Editors). Ecology, Conservation, and Management of Vernal Pool Ecosystems – Proceedings from a 1996 Conference. California Native Plant Society, Sacramento, CA. 1998. Page 2 ___________________________________________________________________ 2. Project Vernal Pool Wetlands. The vernal pool wetlands are proposed for destruction. They are ephemeral, small, permanent, reliably dry during the growing season, isolated by uplands, and without significant surface water input or drainage.8 The size of the existing wetland drainage basins are shown on Figure A-1 of the PacLand Stormwater Drainage Report (Appendix D of the JPA). No acreages of the existing basins are given in the report, only a table of developed basin acreages; and so, an approximate estimate is used. The poor scan quality of the exhibits in the application PDF limits the interpretation in this memorandum; that is, if the information exists on the actual drawings, it is obscured by the PDF and essentially unavailable for comment.9 The study area is divided into nine basins (eight delineated, plus one un-delineated drainage basin on the east and south sides) over the approximately 63-acre site for an average of 7 acres each. This estimate is higher than averaging the eight actual basins because of the unknown size of the east and south drainage areas. The small size of these contributing areas confirms that surface runoff into the existing wetlands is limited and rather small compared to other depressional wetlands in Oregon, some of which may drain dozens or hundreds of acres. This lack of significant surface water input during normal (not storm-level intensity) supports the designation of these wetlands as vernal pool wetlands. The proposed mitigation plan also supports the conclusion that runoff inputs are minor in the existing wetlands.10 Key features of vernal pool wetlands are that they are hydrologically isolated from other wetlands and waters under normal conditions, are largely or totally precipitation-fed, and are widely dispersed in the landscape. The Wetland Mitigation Plan (JPA Figure 2B) shows the size of the study area as approximately 63 acres (61 acres listed, plus an estimated 2 acres for road right-of-way [ROW]). The Wetland Delineation Map (Figure 3 of the ESA Wetlands Delineation Report) shows approximately 9 acres of wetlands. The existing vernal pool wetlands comprise about 14% of the landscape—slightly more than the 10% threshold in the classical definition. The extra 4% may be as a result of the modifications to one wetland for stock watering.11 The presence of livestock grazing in vernal pools has been shown to increase native plant diversity in other Mediterranean climates (Sacramento County, CA) and is, therefore, assumed to improve wetland functions associated with increased native plant diversity during active continuous grazing.12 .____________________________________________________________________ 8 Zedler, Paul. Vernal pools and the concept of isolated wetlands. Wetlands. Vol. 23, No. 3, Sept. 2003, p. 598. 9 JPA 43798, accessed on February 8, 2011 at http://docs.dsl.state.or.us/PublicReview/docview.aspx?id=886725&&&&dbid=0. 10 JPA 43798: Appendix E, Revised Compensatory Mitigation Plan, p. 1. 11 JPA 43798: Appendix E, Revised Compensatory Mitigation Plan, p. 1. 12 Marty, Jaymee T. Effects of Cattle Grazing on Diversity in Ephemeral Wetlands. Conservation Biology Volume 19, No. 5, October 2005. _____________________________________________________________________ B. Risks of Destroying and Attempting to Re-Create the Existing Vernal Pool Wetlands (i.e., Mitigation) 1. The proposed wetland mitigation will not replace the vernal pool wetland system proposed for destruction. According to Figure 8.1 of the JPA application, the total mitigation area is 12.835 acres, including wetlands and upland buffers. The total proposed wetlands for this area is 4.816 acres, approximately 37 percent of the total area. It is clear that the proposed mitigation will not re-create a real vernal pool system, because the percentage of wetlands in the mitigation landscape will be much greater than the existing percentage and much more than the classical definition. In essence, the mitigation areas do not have enough upland buffers between the proposed wetlands to support typical vernal pool ecological functions. To replicate the normal ecological condition of a vernal pool system, the 12.835-acre mitigation area should have no more than 1.2 acres of vernal pool wetlands under the classical definition, and no more than 1.8 acres to replace the existing 14 percent threshold. According to the literature, the 14 percent vernal pool to upland ratio is important. “The question of how much surrounding upland is required to withstand a material change in pool hydrology was partially answered at this site. The construction of six pools within the watershed of Pool 327, occupying an area of approximately 14% of the watershed had no apparent effect.”13 Therefore, limiting the amount of constructed vernal pools in the Wal-Mart mitigation area to 14 percent of the mitigation area will (1) replicate the existing condition, and (2) fall within the range of what is scientifically determined to preserve the vernal pool hydrology. 2. The ecological importance of vernal pool upland buffers. These upland buffers are important to the wetland ecosystems in several ways. Buffers are “vegetated areas adjacent to an aquatic resource that can, through various physical, chemical, and/or biological processes, reduce impacts from adjacent land uses. Buffers also provide the terrestrial habitats necessary for wildlife that use wetlands to meet their life-history needs.”14 Buffers are measured as an offset from the wetland edge or ordinary high water mark of an aquatic feature (stream, river, lake, etc.). Buffers do not include the wetlands themselves, only the upland areas around the wetlands. Upland buffers are crucial to preserving vernal pool hydrologic regime. “Overall, the interaction with the uplands provides for a level of ‘inertia’ in pool hydrology, i.e., it tends to delay, or ‘resist’ the onset of sustained inundation, but once sustained inundation is achieved it tends to perpetuate it. These mechanisms which directly influence the water level regime may play important roles in the life cycles of some species of vernal pool vegetation and macroinvertebrates [fairy shrimp] by acting as ‘triggers’ alone, or in combination with other factors, such as shifts in water temperature or salt content. These may affect germination or reproduction.”15 In other words, the uplands around the pools help to create the water regime needed to support the unique plants and animals that live in the vernal pool wetlands. If there aren’t enough uplands around the vernal pool wetlands, then the vernal pool wetlands will not perform the same ecological functions. Buffers also provide protection from sediment-laden runoff by absorbing or slowing the flows of surface water to allow the sediment particles to fall out or be trapped on vegetation or leaf litter. Sediment particles carry pollution molecules (like nitrogen, phosphorus, heavy metals including copper from brake pads, PAHs [polycyclic aromatic hydrocarbons, from asphalt surfaces, and gas and oil drips], and other toxics) as they move through the landscape, because pollution molecules adsorb to the particle surface and “hitch a ride.” In natural settings, wetlands collect sediment and trap it, along with any adsorbed toxics that are “hitching a ride.” However, when land use changes produce excess sediment-laden runoff (and adsorbed toxics common in urban areas) that are beyond natural levels, buffers are important to protect the wetlands from the negative effects of excess sediment input. On steep slopes, a 200-foot buffer may be needed to prevent sediment flows into the wetland; on flatter grades (2%), a 100-foot buffer can remove 90% of sediment.16 The slope of the existing topography is between 1 and 2 percent.17 Another significant ecological function of upland buffers around vernal pools is wildlife habitat support. Many species that use wetlands for a part of their life cycle also use the adjacent uplands. Mammals, birds, reptiles, and amphibians use terrestrial habitats adjacent to wetlands.18 One study showed that amphibians, in general, use between 159 and 200 meters (522 to 656 feet) of uplands around wetlands or aquatic features.19 Another found that juvenile salamanders commonly use upland areas between 100 and 400 meters (328 and 1,312 feet) from the ponds they were born in.20 In Oregon, riparian buffers of 20 meters (66 feet) contained 80% of salamander species.21 Beaver use upland habitats over 300 feet from wetland edges, and birds used between 49 to 1,640 feet of adjacent upland.22 Since the proposed mitigation does not provide the proper level of upland buffers between the proposed replacement wetlands, they will not adequately replace the ecological functions. The proposed mitigation provides too dense a pattern of wetlands, which will favor some wildlife and not others. The lack of upland buffer area in the proposed mitigation will also reduce the water quality and wildlife value of the vernal pool wetlands. Another reason why the proposed mitigation will not replicate the vernal pool ecological functions is that stormwater will be routed into the mitigation area during normal and peak flows.23 Vernal pools typically do not rely on runoff as a major source of hydrology, but rather direct precipitation.24, 25 Other problems with adding stormwater to wetlands will be discussed in another section of this memorandum. __________________________________________________________________ 13 Pages 38-49 in: C.W. Witham, E.T. Bauder, D. Belk, W.R. Ferren Jr., and R. Ornduff (Editors). Ecology, Conservation, and Management of Vernal Pool Ecosystems – Proceedings from a 1996 Conference. California Native Plant Society, Sacramento, CA. 1998. Page 48. 14 Sheldon, D., T. Hruby, P. Johnson, K. Harper, A. McMillan, T. Granger, S. Stanley, and E. Stockdale. March 2005. Wetlands in Washington State - Volume 1: A Synthesis of the Science. Washington State Department of Ecology. Publication #05-06-006. Olympia, WA. Page 5-23. 15 Pages 38-49 in: C.W. Witham, E.T. Bauder, D. Belk, W.R. Ferren Jr., and R. Ornduff (Editors). Ecology, Conservation, and Management of Vernal Pool Ecosystems – Proceedings from a 1996 Conference. California Native Plant Society, Sacramento, CA. 1998. Page 48. 16 Sheldon, D., T. Hruby, P. Johnson, K. Harper, A. McMillan, T. Granger, S. Stanley, and E.Stockdale. March 2005. Wetlands in Washington State, Volume 1: A Synthesis of the Science. Washington State Department of Ecology. Publication #05-06-006. Olympia, WA. Page 5-33, 5-32. 17 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 14. 18 R.D. Semlitsch and R. Bodie. Biological criteria for buffer zones around wetlands and riparian habitats for amphibians and reptiles. Conservation Biology, Volume 17, No. 5, October 2003 Pages 1219-1228. 19 R.D. Semlitsch and R. Bodie. Biological criteria for buffer zones around wetlands and riparian habitats for amphibians and reptiles. Conservation Biology, Volume 17, No. 5, October 2003 Pages 1219-1228. 20 L.R. Gamble, K. McGarigal, C.L. Jenkins, and B.C. Timm. Limitations of regulated “buffer zones” for the conservation of marbled salamanders. Wetlands, Vol. 26, No. 2, June 2006, pp. 298-306. 21 D.G. Vesely and W.C. McComb. Salamander abundance and amphibian species richness in riparian buffer strips in the Oregon Coast Range. Forest Science 48(2), 291-297, 2002. 22 Sheldon, D., T. Hruby, P. Johnson, K. Harper, A. McMillan, T. Granger, S. Stanley, and E.Stockdale. March 2005. Wetlands in Washington State, Volume 1: A Synthesis of the Science. Washington State Department of Ecology. Publication #05-06-006. Olympia, WA. 23 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 6. 24 Pike, Christopher. Simulating vernal pool hydrologic regimes for two locations in California, USA. Ecological Modelling 173 (2004) pp. 109–110. 25 Bauder, E.T. The effects of an unpredictable precipitation regime on vernal pool hydrology. Freshwater Biology (2005) 50, p. 2130. ____________________________________________________________________ 3. The mitigation plan provides no basis for predicting the hydrologic regime of the created wetlands. Hydrologic regime defines the nature of the wetland ecosystem. “Hydrologic regime” means the properties, distribution, source, fate, and effects of water in and around the wetland. The plants and soil in wetlands are determined by the frequency, duration, and depth of water. Certain plants can only survive in certain depths of water, and many plants are affected by how long the water is present and by how many times in the year the water is present. For example, some plants do not grow in standing water at all; others prefer standing water for most or all of the year. Some plants that only grow in saturated soils can tolerate flooding but only for short time periods. This hydrologic sensitivity is important in mitigation planning. When the hydrologic regime is unknown, the mitigation project is more likely to fail. If certain plants are installed that require specific hydrologic conditions, like only being inundated for short periods of time, then those plants may die if the hydrology changes (or a fraction of them may die). When hydrology causes mortality of the installed species, weeds move in to fill the gaps. Invasive species like reed canarygrass, Russian olive and others then have space to proliferate and take over, often choking out other planted species. This can result in a failed mitigation project. The hydrologic regime is often described by wetland scientists in the form of a “water budget.” The water budget is an analysis of where the water comes from and where it goes. For example, water inputs include precipitation, surface runoff from uplands, water from rivers or lakes, and groundwater. For each input source, the amount of water, the volume of water, and the timing of the arrival is calculated for each month of the year. The fate of the water once it is in the wetland is also calculated. Water outputs can include evaporation, surface outflow, infiltration to the groundwater table, and transpiration (absorption) by plants. A mathematical equation describing a typical water budget is: delta V/ delta t = Pn + Si + Gi – ET – So – Go ± T Where V = volume of storage in the wetland, delta V/delta t = change in volume per unit time t, Pn = net precipitation, Si = surface inflows, including flooding streams, Gi = groundwater inflows (deep or perched), ET = evapotranspiration (a combination of evaporation to the air and transpiration by plants), So = surface outflows, Go = groundwater outflows, and T = tidal inflow (+) or outflow (-).26 By using this equation, a wetland scientist can calculate the depth of water in the wetland each month of the year. The existing wetlands at the proposed Wal-Mart site are dry in summer and wet in the early spring. They go from inundated, to saturated, to dry, and back again during the span of a year. Only by answering the question “How deep is the water in the wetland for each month in a year under normal circumstances?” can a wetland scientist be sure that a proposed wetland creation will support the plants intended to grow there. If a hydrologic model and water budget is not provided, then the wetland scientist designing the mitigation wetland is essentially relying on intuition and/or anecdotal observations, and saying, “Trust me.” Given the generally high rate of mitigation failure due to problems with weed invasion (which often stems from unknown hydrologic regime), the risk of mitigation failure is greatly increased when a proper water budget is not developed. The mitigation plan and stormwater report repeatedly state that the treated stormwater will be routed into the wetlands to maintain wetland hydrology. Based on the data presented in the application, this is an empty promise. No information is provided in the application that shows the normal monthly water levels (actual or modeled) in the wetlands for the pre- and postdevelopment conditions. Only storm event-based models are provided, not depth-based models for non-event precipitation. Proof of this empty promise is the inclusion of multiple control devices (such as weirs) to manipulate the water input to the wetlands. Relying on effectiveness of treatment and the continued manipulation unknown delivery volumes to preserve the unique hydrologic regime of the proposed created vernal pool wetlands will likely result in failure to re-create the vernal pool ecosystem as mitigation. If any baseline data or monthly water-level model existed, then such devices would not be necessary. No year-long monitoring of existing wetland hydrology has been provided, so no baseline data has been presented to show what normal monthly water levels should be maintained after development. This is curious because the wetland delineation data collection began in November 2007;27 Three years have passed and no hydrology monitoring of the existing wetlands has been done. In addition, there is no explanation in the mitigation plan of why baseline hydrology monitoring is not needed. Baseline studies are important for creating a record to detect changes in the ecosystem over time, and allow land managers to respond in the short-term to issues such as water quality degradation.28 In this case, a baseline hydrology study would provide documented targets for created wetland hydrology. Further proof of this lack of critical knowledge is the exclusion of any hydrologic monitoring success goals in the mitigation plan. Only vegetation success goals are presented. Because the mitigation plan allows for plant substitutions based on survival combined with hydrologic manipulation devices, it is clear that tweaking will be needed to cover the lack of knowledge. This need for tweaking increases the risk of mitigation failure. The success criteria in the mitigation plan do not include any wetland hydrology goals; it can therefore be assumed that no one on the applicant’s design team has a clue as to what the actual hydrology will be, since hydrology is so critical to creating a real vernal pool system. To include target monthly water levels as success criteria would be a guaranteed failure of the mitigation, so they were only included in the Adaptive Management Plan. Agency acceptance of mitigation plans that lack a water budget is therefore not advisable. LCI recommends that all regulatory agencies require a detailed wetland hydrologic model based on the best available science to improve the rate of mitigation success. Applications that do not include a properly computed, scientifically valid water budget should be denied without prejudice until a water budget that predicts the monthly depth in the created wetland is provided. _____________________________________________________________________ 26 Mitsch, W.J. and J.G. Gosselink. Wetlands. Second Edition. Van Nostrand Reinhold, 1993. pp. 76-77. 27 Wetland Delineation Report for the Chenoweth Station Subdivision, Wasco County, Oregon. May 2009. DSL No. WD #09-0216. Page 3. 28 Matthews, Robin H., Mike Hilles, Joan Vandersypen, et al. Lake Whatcom Monitoring Project 2001/2002 Final Report. Institute for Watershed Studies, Huxley College of Environmental Studies, Western Washington University. April 21, 2003. Page 1. _____________________________________________________________________ 4. The destruction of the existing pools may destroy future habitat for a threatened species. As previously mentioned, one distinguishing characteristic of natural vernal pool ecosystems is that these wetlands dry out in the summer and fall: they are ephemeral. The hydrologic regime is important to invertebrates such as the vernal pool fairy shrimp (Branchinecta lynchi), which is currently listed by the USFWS as a threatened species that occurs in Oregon. This species was discovered very recently and was first identified and described in the literature in 199029 and first found in Oregon in 1998.30 Because it is a newly discovered species, scientific literature describing its range, life history, and behavior is extremely limited. A comprehensive literature search revealed only five peer-reviewed scientific articles that were readily available. Preservation of this species is important because of its rarity, and because it is new to science and its role in the ecosystem may be important to other organisms or functions. For example, the functional assessment provided in the application includes a score for Aquatic Invertebrate Habitat31 because of the importance in the ecosystem. Fairy shrimp are present at the Wal-Mart site. They were located by the USFWS during a one-day inspection on April 7, 2009.32 The vernal pool fairy shrimp is known to co-exist with other species of fairy shrimp.33 The vernal pool fairy shrimp is known to inhabit wetlands that vary in characteristics such as geology, pH, area, elevation, and depth. It has been found at elevations ranging from 10 to 1,159 m.34 It occurs in “grassed (occasionally mud-bottomed) swale, earth slump, or basalt-flow depression pools in unplowed grasslands,” as well as in pools with sandstone bottoms.35 Water pH values of known habitats range from 5.5 to 7.0 in sandstone pools, from 6.3 to 8.1 elsewhere, and “temperatures between about 6 and 20 [degrees] C in soft, poorly buffered waters (low TDS, conductivity, alkalinity, chloride) with a pH averaging about 7.0.”36 This species frequently occurs with other fairy shrimp.37,38 The vernal pool wetlands proposed for destruction are depression pools underlain by basalt flows like the wetlands that are known to contain fairy shrimp.39 The pH range of the fairy shrimp found by the USFWS at the proposed Wal-Mart site (Eubranchipus oregonus) is 5.8 to 6.2 and within the pH range of the vernal pool fairy shrimp.40 The depth of water in known vernal pool fairy shrimp sites generally ranges from 5.5 inches (0.14 m) to 0.23 inches (0.006 m),41 and as deep as 122 cm (48.03 in)42. Surface water depth in the vernal pool wetlands at the Wal-Mart site is largely unknown because of the lack of data in most of the smaller wetlands and lack of data during the early growing season. Still, DP-17 in the Wetland Delineation Report shows 3 inches of surface water, which is within this range. The pH and water depth in the vernal pool wetlands on the Wal-Mart site are suitable for the vernal pool fairy shrimp. The vernal pool fairy shrimp may not be observable during one site visit. They can hatch, grow, breed, lay eggs, and disappear in as little as eleven weeks, even when water remains in the pools; females can breed and lay eggs in as little as two weeks following initial inundation.43 It is possible that the USFWS site visit occurred when the shrimp were already finished their brief life cycle, if they exist on the site. The currently known range of this species in Oregon is limited to Jackson County. However, “because the presence of vernal pool fairy shrimp was first documented in 1998, it is possible that additional locations for the species will be found in Oregon in the future.”44 “Although there are many observations of the environmental conditions where vernal pool fairy shrimp have been found, there have been no experimental studies investigating the specific habitat requirements of this species. Platenkamp (1998) found no significant differences in vernal pool fairy shrimp distribution between four different geomorphic surfaces studied at Beale Air Force Base [California].”45 Thus, according to the best available science, the absence of vernal pool fairy shrimp at the proposed Wal-Mart site does not preclude future colonization of this rare species. It is a threatened species: there aren’t many around to find, whether the habitat is suitable or not. It is currently unknown what the natural range of this species was before being listed as threatened. Because of the similarities discussed, it is reasonable to assume that the vernal pool wetlands proposed for destruction could potentially support the vernal pool fairy shrimp in the future if numbers increase. For this reason, the existing vernal pools should be preserved intact, and none should be destroyed or modified for development of any kind. An analogous situation exists with a formerly endangered species, the peregrine falcon (Falco peregrinus). The contamination of the environment with DDT pesticides almost wiped out the wild populations of this species in the 1970s. A captive breeding and release program was initiated, and the species is now de-listed and no longer endangered. During the reintroduction, peregrine falcons began nesting in urban areas in greater numbers than ever recorded. Nests appeared on bridges, skyscrapers, tall buildings, and even junked warships, where no peregrines had nested previously. The increase in numbers allowed the colonization of cities as well as the traditional nesting on cliff ledges in wild areas. It is possible that the vernal pool fairy shrimp, like the peregrine falcon, could expand to previously unknown regions, such as the proposed Wal-Mart site, if numbers increase in the future. The existing pools should be maintained in the current or better condition to allow this threatened species to colonize the area, if possible. ___________________________________________________________________________________ 29 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), pp. 247, 255. 30 U.S. Fish and Wildlife Service. 2005. Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon. Portland, Oregon. xxvi + 606 pages. Page II-194. 31 JPA 43798: Appendix E, Revised Compensatory Mitigation Plan, p. 15. 32 JPA 43798: Appendix F, USFWS Fairy Shrimp Site Visit Report. 33 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 257. 34 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 257. 35 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 257. 36 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 257. 37 Gallagher, Sean P. Seasonal Occurrence and Habitat Characteristics of Some Vernal Pool Branchiopoda in Northern California, U.S.A. Journal of Crustacean Biology, Vol. 16, No. 2 (May, 1996), p. 325. 38 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 257. 39 JPA 43798: Appendix E, Revised Compensatory Mitigation Plan, p. 8. 40 Larry L. Eng, Denton Belk, and Clyde H. Eriksen. Californian Anostraca: Distribution, Habitat, and Status. Journal of Crustacean Biology, Vol. 10, No. 2 (May, 1990), p. 254. 41 Gallagher, Sean P. Seasonal Occurrence and Habitat Characteristics of Some Vernal Pool Branchiopoda in Northern California, U.S.A. Journal of Crustacean Biology, Vol. 16, No. 2 (May, 1996), p. 326. 42 Pages 124-139 in: C.W. Witham, E.T. Bauder, D. Belk, W.R. Ferren Jr., and R. Ornduff (Editors). Ecology, Conservation, and Management of Vernal Pool Ecosystems – Proceedings from a 1996 Conference. California Native Plant Society, Sacramento, CA. 1998. Page 137. 43 Gallagher, Sean P. Seasonal Occurrence and Habitat Characteristics of Some Vernal Pool Branchiopoda in Northern California, U.S.A. Journal of Crustacean Biology, Vol. 16, No. 2 (May, 1996), p.326. 44 U.S. Fish and Wildlife Service. 2005. Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon. Portland, Oregon. xxvi + 606 pages. Page II-194. 45 U.S. Fish and Wildlife Service. 2005. Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon. Portland, Oregon. xxvi + 606 pages. Page II-196. ___________________________________________________________________ C. Impacts of Stormwater on the Existing and Proposed Mitigation Wetlands 1. The treated stormwater discharges will change the hydrologic regime and harm the natural wetlands. The proposed project will result in treated stormwater (“stormwater” hereafter) entering the preserved wetlands and the mitigation areas either during peak events or under normal circumstances.46 In all cases, the discharge rates during storm events into the wetlands will increase from the existing condition and in one case almost doubling.47 The proposed treatment of the stormwater will not protect the wetlands or downstream aquatic environments.48 The vernal pool wetland hydrologic regime is primarily driven by precipitation, as discussed elsewhere in this memorandum. The proposed stormwater and mitigation plan advocate replacing the low levels of natural surface runoff from the small basins with stormwater inputs. This change has the potential to harm the wetlands because of the nature of the stormwater. The effects of urbanization on water quality and aquatic and wetland ecosystem health occur because impervious surface is created. As a result, runoff increases and carries pollution with it, such as fine sediment from roads and parking lots. Engineered systems catch the extra runoff, slow it down, and discharge it at a calculated rate. Even the newest stormwater runoff models produce treatment systems that harm wetlands, especially those vegetated with a wide variety of sensitive native plants.49, 50, 51 The best available science (as of 2008 and earlier) clearly shows that the stormwater system designed by PacLand for the proposed Wal-Mart will harm the plants and wildlife in the wetlands.52 The result of discharging treated stormwater into the wetlands will cause a change in the plant community and allow invasion of weeds at a minimum. ____________________________________________________________________________ 46 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 10, 17. 47 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 17, 18. 48 Concerned Scientists and Engineers. Letter to Puget Sound Partnership, “Partnership Recommendations To: Improve Water Quality and Habitat by Managing Stormwater Runoff; Protect Ecosystem Biodiversity and Recover Imperiled Species; Provide Water for People, Fish and Wildlife, and the Environment.” October 26, 2006. Accessed online on 02/02/10 at http://seattletimes.nwsource.com/ABPub/2008/05/10/2004406008.pdf. 49 Cornwall, Warren. “The Painful Cost of Booming Growth.” The Seattle Times. May 11, 2008. Accessed online on 11/23/10 at http://seattletimes.nwsource.com/html/localnews/2004405985_growth_stormwater20m0.html. 50 Azous, Amanda L. and Richard G. Horner, Ed. Wetlands and Urbanization: Implications for the Future. Final Report of the Puget Sound Wetlands and Stormwater Management Research Program. Published by Washington State Department of Ecology, Olympia, WA; King County Water and Land Resources Division; the University of Washington, Seattle, WA. 1997. 51 Concerned Scientists and Engineers. Letter to Puget Sound Partnership, “Partnership Recommendations To: Improve Water Quality and Habitat by Managing Stormwater Runoff; Protect Ecosystem Biodiversity and Recover Imperiled Species; Provide Water for People, Fish and Wildlife, and the Environment.” October 26, 2006. Accessed online on 02/02/10 at http://seattletimes.nwsource.com/ABPub/2008/05/10/2004406008.pdf. 52 Azous, Amanda L. and Richard G. Horner, Ed. Wetlands and Urbanization: Implications for the Future. Final Report of the Puget Sound Wetlands and Stormwater Management Research Program. Published by Washington State Department of Ecology, Olympia, WA; King County Water and Land Resources Division; the University of Washington, Seattle, WA. 1997. ___________________________________________________________________________________ 2. Stormwater contains pollution that will harm the wetlands. Even if a proper hydrology model was used to determine how much water was needed in the mitigation wetlands, the addition of stormwater to the wetlands will still harm the wetlands. The proposed Wal-Mart project will create a total of 17.84 acres of impervious surface.53 This amounts to 28 percent of the total approximately 63-acre property. The harmful effects of urbanization on wetlands and aquatic ecosystems begin when the impervious area exceeds 20 percent of the landscape.54 Since the proposed project will exceed 20 percent impervious surface, it will produce the harmful effects associated with urbanization and treated stormwater discharges. The proposed Wal-Mart will generate harmful pollution that will enter the wetlands and aquatic features. “The storm runoff will contain some forms of sediment, metals (zinc, copper, lead, etc.), oil from cars, and nutrients (nitrogen, phosphorous) as expected in a commercial development. Portions of the public street extension and secondary access road will convey similar pollutants into adjoining swales where stormwater will be treated prior to being discharged into a piped public storm drain.”55 The proposed stormwater system, including the filter cartridges and oil separator, does not address the actual levels of pollution that will enter the wetlands and stream after treatment. Only relative removal effectiveness of the systems is addressed, not absolute. “The swales will remove 70% TSS (Total Suspended Solids) removal from 90% of the average annual runoff. TSS is defined as matter suspended in stormwater excluding litter debris and other gross solids exceeding one (1) millimeter in diameter.”56 In other words, 10 percent of the yearly stormwater runoff will be totally untreated. No volume of this polluted, untreated stormwater is given; and no estimate of the real units of pollution is given (e.g., 1,200,000 cubic feet [= 33,980,216.40 L] of water containing: 3 mg/L of phosphorus for a total of 101.94 kg [224.74 pounds] of phosphorus; or 522 micrograms/L [=0.522 mg/L] of copper for a total of 17.74 kg [39.11 pounds] of copper, or similar estimates). This is a massive amount of untreated polluted water that will enter the wetlands and stream, and it will harm the ecosystem.57 It is impossible to judge the actual risk to the wetlands and waters if these types of estimates are not reported in the application, except to say the harm will occur. Of the treated stormwater, 30 percent of the sediments greater than one (1) millimeter will not be removed. This is a very important detail, since pollution molecules can “hitch a ride” on sediment particles, as described elsewhere in this memo. Again, no estimates are given as to how much actual pollution (copper, zinc, lead, oil, nitrogen, and phosphorus to name a few) will be transmitted into the wetlands and streams. It is clear that the proposed stormwater system will absolutely not protect the wetlands and waters from pollution. The pollution will either accumulate in the wetlands or be washed into the creek and then into the Columbia River. LCI recommends that all agencies deny the Joint Permit Application to protect the aquatic resources that will, without a doubt, be harmed according to the best available science quoted in this memorandum. _____________________________________________________________________________ 53 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 9. 54 Azous, Amanda L. and Richard G. Horner, Ed. Wetlands and Urbanization: Implications for the Future. Final Report of the Puget Sound Wetlands and Stormwater Management Research Program. Published by Washington State Department of Ecology, Olympia, WA; King County Water and Land Resources Division; the University of Washington, Seattle, WA. 1997. Chapter 8, p.145. 55 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 19. 56 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 10. 57 Azous, Amanda L. and Richard G. Horner, Ed. Wetlands and Urbanization: Implications for the Future. Final Report of the Puget Sound Wetlands and Stormwater Management Research Program. Published by Washington State Department of Ecology, Olympia, WA; King County Water and Land Resources Division; the University of Washington, Seattle, WA. 1997. __________________________________________________________________________ 3. The proposed stormwater system and mitigation success depends on structures, devices, and/or maintenance that cannot be guaranteed or enforced over time, and will eventually harm the vernal pool wetlands. The proposed stormwater system intended to protect the wetlands will require regular maintenance. “Catch basins and curb inlets sumps and truck well drains must be cleaned by vacuum truck as needed or as required by local regulation and site conditions. Debris removed from catch basins must be disposed of in accordance with Federal, State, and local regulations at an approved disposal facility. Waste must be properly manifested if required and copies of manifests included in the Stormwater Maintenance and Inspection Reports binder. If an insert or filter media is used in the catch basin, consult the manufacturer for maintenance specifications and provide maintenance according to manufacturer recommendations.”58 Because maintenance is required, the question of who will pay to maintain the stormwater filter system, catch basins, and etc., is important. The costs of such upkeep can be quite high, and repairs must be completed rapidly to ensure no pollution is discharged into the wetlands and waters. In this case, “the City of The Dalles has prescribed that the current land owner and Wal-Mart maintain the mechanical treatment system.”59 Wetlands exist in perpetuity under constant environmental conditions; they can remain present for hundreds of years or longer. The on-site vernal pool wetlands have existed since the Missoula floods 13,000 years ago.60 Wal-Mart stores may not last as long. Anecdotal observations and news reports of vacant big-box stores, including abandoned Wal-Marts, demonstrate that business goals can change and stores can close. If the proposed Wal-Mart is constructed and closes (or changes ownership) in the future, there is no guarantee that the proposed weirs, stormwater filter cartridges, sumped steel catch basins, or bioswale maintenance will continue. If any maintenance mentioned in the application stops, then the vernal pool wetlands and nearby creek will be further harmed until it resumes. In recent projects designing and permitting wetland mitigation projects, LCI observed such manipulations and devices being rejected by the Seattle District Corps of Engineers during the conceptual design phases.61 Devices such as weirs can fall apart over time, and maintenance cannot be guaranteed. Instead, proper and comprehensive hydrologic monitoring and/or modeling were required to obtain permit approval, and all control structures were required to be permanent fixtures constructed at effective elevations. Allowing such stormwater systems and maintenance-dependent devices in conjunction with wetland mitigation is a recipe for disaster. Regulatory agencies do not monitor such systems, and often do not enforce permit conditions 10, 20, or 13,000 years down the road. LCI recommends that all stormwater and mitigation designs rely on passive systems that do not require regular maintenance. It is the only way to even come close to the longevity of a natural wetland system. For this reason, the proposed Wal-Mart construction project should be rejected. Sincerely, Joseph D. Leyda, MA Professional Wetland Scientist Certified Ecologist __________________________________________________________________________ 58 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 12. 59 JPA 43798: Appendix D, Preliminary Drainage Report, PacLand Job Number 20-001-043, page 15. 60 JPA 43798: Appendix E, Revised Compensatory Mitigation Plan, p. 1. 61 T.J. Stetz, Seattle District Corps of Engineers Regulatory Branch, personal communication. __________________________________________________________________________ Guidance Document to Help with Your Comments Oregon Department of State Lands - Removal and Fill Regulations The Dalles, Chenoweth Station (WalMart) Application I. OVERVIEW Among other permits, WalMart must obtain a state fill (wetlands & waterway) permit for The Dalles proposed site. This is a separate permit from the US Army Corps of Engineers (Corps) wetland fill permit. The Corps permit is issued under federal law, the Clean Water Act. (CWA). The state permit is issued under state law, which in Oregon is broader than the CWA. Although they both relate to wetlands and water ways, the two permits have somewhat different criteria. WalMart submitted an application to both the Corps and to the Oregon Department of State Lands (DSL), called a Joint Permit Application (JPA) . Although comments have already been sought by the Corps, DSL has only recently deemed the WalMart application complete. DSL has now issued a notice of a chance to comment on the state fill permit. The application is available on-line. either at: http://www.statelandsonline.com/index.cfm?fuseaction=Comments.AppDetailLF&id=43798 or at: http://www.statelandsonline.com/ (select “Removal Fill Permit and Authorization Status,” then select Wasco County, then select WalMart.) COMMENTS on WalMart’s application for a state wetland fill permit ARE DUE ON OR BEFORE February 14, 2011. Comments can be submitted by either FAX or Mail. Comments should be addressed to: Sarah Kelly, Oregon DSL, 1645 N.E. Forbes Road, Suite 112, Bend, OR 97701 The FAX # there is: 503-378-4844 The DSL will review WalMart’s state fill permit application to determine two things: (1) Whether WalMart’s application is complete and fulfills all of the DSL requirements, and (2) Whether WalMart’s proposed wetland fill will be consistent with state wetlands policy. This Citizen Guidance document describes some of the DSL requirements and policies that will be relevant when it is time for citizens to comment on the state fill permit. Where To Look For Applicable Rules & LawsThe state policies and goals that apply to this process are found in two locations: in the Oregon Revised Statutes (ORS), and in the DSL Oregon Administrative Rules (OAR). Those laws are available on-line, at: http://landru.leg.state.or.us/ors/196.html and at http://arcweb.sos.state.or.us/rules/OARS_100/OAR_141/141_tofc.html respectively. The basic approach of the state fill permit program is to first require an assessment of alternative sites and designs for the project – sites or designs that will avoid and minimize damage to wetlands and water bodies. Then – and only then – if alternative sites or designs cannot be done in a way that eliminates impacts, to try to make up for or “mitigate” any remaining unavoidable impacts a Mitigation Plan is prepared. Such plans usually involved proposed wetland restoration or creation of similarly functioning wetlands, preferable near the original fill location. A recent court case has changed the way DSL applies some of the rules that apply to the wetland fill program. [1] DSL will now focus its analysis more on the effects of the removal and fill of wetlands and waterways, instead of considering the effects of the entire project. For example, DSL will now not consider the effects that increased customer traffic from a Walmart store will have on the community. Those effects are not effect from the wetland fill, so they are not something DSL has to evaluate. There are still some circumstances in which DSL can consider the effects from the project as a whole. Thus, it is important to pay attention to where this guidance discusses potential effects from the “fill” rather than effects from the “project.” When in doubt, it is best to include information in comments, even if DSL might ultimately ignore it. Regardless of this new court decision DSL’s paramount and statutorily created policy concerning wetlands continues to be “to preserve the use of its waters for navigation, fishing and public recreation uses.” The DSL is not supposed to issue a fill permit if the project will interfere with navigation, fishing or public recreation uses or be “inconsistent with the protection, preservation and best use of the water resources of this state.” The DSL is also supposed to ensure impacts are minimized and wetland fill projects are the minimum size necessary to provide for the proposed use.[2] à In providing comments to DSL, if you think it will potentially help the DSL understand the true potential impacts of the project better, include in your comments questions that you think WalMart or the DSL (or both) should answer.
II. WALMART’S BURDEN As the permit applicant, it is WalMart’s responsibility to provide the DSL (and the public) with all of the necessary information about the proposed project. [3] The more complex the proposed project, the more public interest there is, and the higher degree of adverse impacts that will potentially result from the project, the more detailed information the applicant must provide.[4] à Comments should identify the complexities associated with this project (rare wetlands, and listed fishery habitat for example), along with the high level of public interest (both positive & negative) in the project. à Comments that discuss the social and economic issues that a WalMart Superstore could potentially create can and should be included. à Comments could, for example, address the accuracy of WalMart’s past claims that a Superstore will inject millions of dollars into the local economy.
III. PURPOSE AND NEED WalMart’s application must describe, in detail, the specific purpose and the documented public need for thewetland fill.[5] The DSL will consider, as part of that “needs” analysis, the social, economic or other public “benefits” from the wetland fill and any economic “cost” to the public if the fill does not occur.[6] DSL only has authority to consider the public benefits, if any, from the wetland fill itself; DSL may not consider potential economic benefits from the construction and operation of the WalMart store.[7] à Comments could remind DSL that it must ignore any economic benefits WalMart claims the store will generate. à WalMart suggests that the property zoning shows the public need and desire for the WalMart store, yet the property owners had to petition to change the zoning in the first place so that a WalMart could be considered.
IV. DESCRIPTION OF SITE AND IMPACTS WalMart’s application is supposed to describe the project site and the anticipated impacts from the project in several particular ways, including: a. Drawings that clearly delineate the boundaries of the site’s wetlands;[8] à People who are commenting may want to point out that the wetland maps and Delineation submitted by WalMart to DSL are dramatically different than the wetland map that WalMart submitted to the City of The Dalles. This inaccurate submittal to the City raises concerns as to whether DSL (or the public) can or should rely on the accuracy of other WalMart submittals. b. Detailed descriptions of the project “footprint” including the entire area of impact;[9] à Comments could point out that the JPA that WalMart submitted does not address much of the area of Chenoweth Creek that will be affected by the Superstore’s stormwater discharges. Nor does the JPA discuss in any detail the potential impacts of the project on the Columbia River, or the potential effects on other wetlands that are on or near the site but won’t be directly filled by the proposed construction (for example the nearby ODOT mitigation wetland area). People who are familiar with, or concerned about, these areas or issues should be sure to raise these issues in their comments. c. Any information known by the applicant concerning the presence of any threatened or endangered (federal or state listed) species;[10] à Chenoweth Creek is “Essential Salmonid Habitat” (Oregon state designation[11]) and designated or listed “Critical Habitat” under the Endangered Species Act (ESA) for Mid-Columbia Steelhead (federal designation). The Creek is also habitat for Lower Columbia River Coho Salmon. à So far, WalMart has not publically provided documents that discuss the potential impacts of the project on ESA listed species that are known to spawn in Chenoweth Creek, or the Lower Columbia River Coho that are known to frequent Chenoweth Creek. à People who are familiar with, or concerned about, the Creek and/or these fisheries should be sure to provide their own observations and to address their concerns about these topics in their comments. d. Any information known by the applicant concerning historical, cultural and/or archeological resources, such as “a statement on the results of consultation with impacted tribal governments and/or the Oregon State Historic Preservation Office of the Oregon DSL of Parks and Recreation [12] à The WalMart application will need to be carefully reviewed to see if they address each of these cultural resource issues in detail. So far the material on file with the Corps does not. à People who are familiar with, or concerned about, these issues should provide their own observations or collected information on these topics in their comments. e. Amount and extent of impact to “jurisdictional waters” (that is, wetlands, creeks and rivers); [13] à WalMart has not, so far, publically provided estimates of the amount of pollution that will be discharged to wetlands, to Chenoweth Creek, or to the Columbia River via stormwater runoff. Given the parking lots, road, and buildings proposed, pollutants that will likely be discharged include copper, lead, zinc, sediment and hydrocarbons. Copper is extremely toxic to salmon. à WalMart has represented that it will treat some or all of its polluted runoff. However, the proposed treatment devices suggested so far will most likely only remove a portion of the known pollutants. à So far WalMart has not provided meaningful analysis of the potential hyrological affects on water temperature in Chenoweth Creek or changes in peak flows in the Creek, from removing and filling such a large amount of rare wetlands. f. Identification of the adverse impacts to aquatic species that will result from the project.[14] à WalMart proposes to destroy significant wetland habitat, drive construction equipment over dormant fairy shrimp, and pipe polluted water into wetlands and salmon habitat. So far, WalMart has not publically released any analysis that evaluates the adverse impacts to these various aquatic species. g. Identification of the adverse impacts to physical characteristics of water resources that will result from the project[15] and an analysis of potential changes that the project may make to the hydrologic characteristics of wetlands, creeks and rivers;[16] à In the JPA and elsewhere, WalMart makes the astonishing claim that constructing over 20 acres of impervious parking lots, roads and buildings will not change the site hydrology. à WalMart appears to base its claim primarily on the theory that the proposed bioswales will capture the amount of rainfall from a typical summer storm. There is little or no technical support for that theory, on this sort of site. à Water that currently infiltrates into the ground, via wetlands, will most likely be instead captured and sent to a stormwater outfall directly into Chenoweth Creek. This will affect both the Creek, and the other wetlands, and the general hydrology of the area. à The truth is, there are many ways the project could change site hydrology. This includes the addition of significant amounts of stormwater to the Creek, which not only affects water quality but also could potentially increase water velocity and erosion there. h. Whether the proposed wetland fill is compatible with the acknowledged comprehensive plan and land use regulations for the area[17] à The City has already approved the project, but comments should point out that the City was relying on inaccurate wetland maps submitted by WalMart. The DSL approved Delineation for the site lists many more wetlands than WalMart to the City. So it is not clear if the project really is compatible with local land use regulations and the Comprehensive Plan, or not à The City also approved only with a number of conditions. As part of those conditions, the City deferred much of the land use compliance analysis (wetlands being one good example, water quality another) to the state and federal agencies. à That means that it is incumbent on DSL to review the City Code and the City Comprehensive Plan, to determine whether the current WalMart proposal is (or is not) consistent with those provisions of local law. DSL cannot rely, as it normally does, on the local governments evaluation because in this instance the local government deferred to DSL.
V. ALTERNATIVES ANALYSIS The applicant’s analysis of “practicable” alternative sites and site designs is a critical element. In this situation “practicable” means: “capable of being accomplished after taking into consideration cost, existing technology, and logistics with respect to the overall project purpose.”[18]
In other words, cost is a consideration, but it is not the only consideration. The alternatives analysis must show that the proposed project site “has the least reasonably expected adverse impacts” on wetlands, creeks and rivers.[19] The alternatives analysis should contain descriptions of project sites and designs that would avoid and minimize impacts to state waters, with an “explanation of why each alternative is, or is not practicable, in light of the project purpose and need.” [20]
The purpose of the alternatives analysis is to allow the DSL to determine whether the “project is consistent with the protection, conservation and best use of the water resources of this state.”[21]
à If WalMart rejects some or all alternative sites, it must first have adequately explained why each and every one of those sites are not practicable. à The WalMart JPA does not specify what level of “cost” or delay is considered by WalMart to be “unreasonable” or “impracticable.” DSL should be encouraged to use its own public interest based definitions, not some unspecified corporate definition. à WalMart does not explain in the JPA why it cannot petition to change the zoning on several industrial-zoned properties in The Dalles (or elsewhere) to allow properties that are currently not zoned for this use to be made available. After all, that is what WalMart did with this site. If it was feasible here, it is likely feasible at other sites. àWalMart does not explain why it cannot buy Kmart (or some other already existing big box store) out of its lease, and move into and remodel and existing facility rather than destroying rare wetlands with a new facility. àWalMart claims in the JPA that the Chenoweth Station site would have the smallest impact on wetlands, but most if not all of the other sites that even WalMart considered had fewer acres of wetlands (and some had no wetlands). à WalMart’s alternative site designs all have the same size parking lot and store. WalMart needs to be forced to consider revised designs with a dramatically smaller footprint, both for parking and for the store. à WalMart’s alternative site designs all require greater wetland fill, while DSL regulations require applicants to analyze alternative with smaller impacts.
VI. MITIGATION a. Generally Once the applicant has (a) done a full alternatives analysis, (b) has shown that no other alternatives are practicable, and (c) has planned its project to minimize the impacts to water resources to the maximum extent practicable, then – and only then -it must prepare a “Compensatory Wetland Mitigation Plan” (CWMP) to try to compensate for unavoidable impacts and restore temporary impacts.[22] In a CWMP the applicant must provide all practicable mitigation measures.[23] The applicant must compensate for every acre of wetlands that will be unavoidably impacted. There are different types of mitigation, including creating new wetlands, enhancing degraded wetlands and permanently preserving existing wetlands. There are different ratios associated with the different types of mitigation. For example, to offset one acre of wetland impacts, the applicant would have to enhance three acres of degraded wetlands. à Before a CWMP is even considered, DSL needs to ensure that a true and complete alternatives analysis had been completed. à Before a CWMP is even considered, DSL needs to ensure that other alternatives are not practicable, using DSL’s definition of “practicable” not WalMart’s definition. à Before a CWMP is even considered, DSL needs to ensure that the project has been fully redesigned to minimize impacts (which would include for example, making the parking lot or roads or the building considerably smaller). à If a CWMP is considered, DSL needs to keep in mind that the site wetlands are extremely rare and notoriously hard to replicate or mitigate. à If a CWMP is considered, DSL needs to ensure that WalMart is not counting bioswales as part of its mitigation acreage. Such swales do not function as, or even resemble, the existing site wetlands. Such swales are not properly considered as mitigation. Compensatory non-wetland mitigation measures should include measurable performance standards.[24] à WalMart needs to provide measurable performance standards. à Also, WalMart needs to provide full or complete mitigation for all impacts or any sort to Chenoweth Creek. Mitigation wetlands are to be located in places that are free from contaminants and conflicting land uses.[25] à WalMart proposes to discharge some polluted runoff directly into the wetlands. Other polluted water will go directly to Chenoweth Creek which is already listed by the state as an impaired waterbody due to excessive pollution. àThe remainder of the project site is zoned light industrial/commercial, and it is near a contaminated property. b. Multi-Purpose Mitigation The DSLs regulations allow mitigation wetlands to perform double-duty as stormwater management facilities (called “multi-purpose CWM”) provided certain requirements are met. These include that the runoff water entering the site be treated to ensure water quality standards are met.[26] à Nothing in WalMart’s current plans ensures that water entering the site will be treated to meet water quality standards. c. Enhancement Mitigation “Enhancement” wetland mitigation must produce a “demonstrable net gain in functions and values” over and above the functions and values that the project will destroy, or the functions and values that otherwise exist on site.[27] Enhancement project plans must always identify “the abundance of exotic species” onsite.[28] Mitigation by enhancement must also indicate the how the applicant plans to control factors that led to the degraded conditions in the first place.[29] à Where WalMart proposes to replace existing wetlands functions with the same or lower level of functions, that would not qualify as “enhancement.” àWalMart has so far not quantified the amount of non-native species on this site. Nor has WalMart provided any detailed plans that would effectively control invasive species at the site. d. Preservation Mitigation Mitigation by preservation requires that the applicant assess existing and probable future land uses nearby and specify how the uses will affect the wetlands. The applicant must also identify any control measures that may be necessary.[30] à WalMart’s JPA does not fully analyze the surrounding land uses (including additional potential wetland fills, increased impervious surfaces, increased polluted runoff, or increased traffic and noise) and their probable effects on the wetlands Walmart proposes to preserve. Nor does the JPA provide any proposed measures to minimize those effects. VII. CONCLUSION CFRD hopes that you have found this guidance helpful. We encourage all citizens to provide their thoughts on these issues to DSL. Please remember that for your thoughts to be considered, they MUST be sent to DSL so that they arrive at the DSL office on or before 5:00 pm on Monday February 14, 2011.
[1] Examilotis v. Dept. of State Lands, No. 700204, A139450, slip op. (Or. Ct. App. Dec. 15, 2010) (available online at www.publications.ojd.state.or.us/A139450.htm). In Examilotis, the court held that because the Oregon removal/fill statute directs DSL to base its permitting decision on the effects of the “proposed fill”, DSL did not have to follow its own rules that authorized consideration of the the broader “project” effects. However, DSL must still consider the availability of alternatives to the project as a whole, and DSL’s criteria describing a complete permit application were not at issue in Examilotis so those rules are still binding on DSL.
[2] See, ORS 196.682.
[3] See, OAR 141-085-0565(5).
[4] See, OAR 141-085-0550(3).
[5] See, ORS 196.825(2)(a);OAR 141-085-0550(4)(g).
[6] See, ORS 196.825(2)(a)-(b); OAR 141-085-0565(4)(a)-(b).
[7] See Examilotis v. Dept. of State Lands, No. 700204, A139450, slip op. (Or. Ct. App. Dec. 15, 2010).
[8] See, OAR 141-085-0550(4)(h).
[9] See, ORS 196.825(11)(b)(A), (B), (D) & (E); OAR 141-085-0550(4)(h).
[10] See, ORS 196.825(11)(b)(E); OAR 141-085-0550(4)(n).
[11] See, ORS 196.810.
[12] See, OAR 141-085-0550(4)(o).
[13] See, ORS 196.825(11)(b)(A), (B), (D) & (E); OAR 141-085-0550(4)(h). [14] See, ORS 196.825(11)(b)(E); OAR 141-085-0550(4)(j).
[15] See, ORS 196.825(11)(b)(E); OAR 141-085-0550(4)(j).
[16] See, ORS 196.825(11)(b)(D); OAR 141-085-0550(4)(i). [17] See, ORS 196.825(2)(g); and OAR 141-085-0565(4)(g)
[18] See, OAR 141-085-0510(66).
[19] See, OAR 141-085-0550(4)(p).
[20] See, OAR 141-085-0550(4)(p). See also ORS 196.825(11)(b)(F).
[21] See, OAR 141-085-0565(5). [22] See, OAR 141-085-0550(4)(q).
[23] See, OAR 141-085-0565(4)(i).
[24] See, OAR 141-085-0765.
[25] See, OAR 141-085-0680(2)(a)(D).
[26] See, OAR 141-085-0690(8)(c).
[27] See, OAR 141-085-0690(9)(b).
[28] See, OAR 141-085-0705(1)(d)(B).
[29] See, OAR 141-085-0705(1)(d)(A)(iv). [30] See, OAR 141-085-0690(10). For more information on how Wal-Mart affects communities please visit these sites:
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