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Oregon Department of State Lands 775 Summer St NORTHWEST ENVIRONMENTAL DEFENSE CENTER 10015 S.W. Terwilliger Blvd., Portland, Oregon 97219 Phone: (503) 768-6673 Fax: (503) 768-6671 www.nedc.org March 12, 2013 SUBMITTED VIA EMAIL ([email protected]) Russ Klassen Oregon Department of Transportation Liaison Oregon Department of State Lands 775 Summer St. N.E., Ste. 100 Salem, Oregon 97301-1279 RE: Comments on the Interstate 5 Colombia River Crossing Project Removal-Fill Permit Application, No. APP0052419 Dear Mr. Klassen, The Northwest Environmental Defense Center (“NEDC”) submits the following comments on the Interstate 5 Columbia River Crossing (“CRC”) application for a removal-fill permit from the Oregon Department of State Lands (“DSL”), permit application number APP0052419, submitted by the Oregon Department of Transportation and Washington Department of Transportation (collectively, “ODOT”). NEDC is a non- profit organization whose mission is to protect the environment and natural resources of the Pacific Northwest. Given this mission, NEDC is concerned about the environmental impacts posed by the CRC. NEDC seeks to ensure all state and federal environmental laws and regulations are complied with throughout the development and planning of the bridge project. DSL must not issue the permit for this project. First, in violation of state law and DSL’s regulations, ODOT has failed to seriously consider alternatives to the proposed action that would avoid, reduce or compensate for the significant negative impacts to Oregon’s waters that will result from the proposed action. Second, DOT has failed to clearly identify the impacts that will occur in direct contravention of established law, NORTHWEST ENVIRONMENTAL DEFENSE CENTER COMMENTS ON CRC REMOVAL-FILL PERMIT APPLICATION PAGE 1 OF 25 including failing to take the most fundamental step to identify the wetlands that may be impacted by the proposed action and detailing the steps it will take to minimize such impacts. Finally, DSL must, consistent with both state law and Oregon’s long-stated commitment to the protection and preservation of our precious natural resources, step forward to prevent ODOT from taking an action that will significantly impact several of Oregon’s most critically imperiled salmon populations. For these reasons, and the many others outlined below, DSL must deny this permit request. Discussion The CRC, as currently proposed, is not “consistent with the protection, conservation and best use of the water resources of this state” and will “unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation.” ORS 195.825. First, ODOT has failed to ensure that it will protect Oregon’s waters. This fundamental, and fatal, failure is seen first and most prominently in the improper definition of the purpose of the project, and the resulting failure to analyze a reasonable range of alternatives. Second, the CRC as currently envisioned will undoubtedly have significant short- and long-term negative impacts on the Columbia River and the surrounding region. Specifically, this project will negatively and permanently impact navigation on the river, the vitality of salmon populations, and Oregon’s citizens’ use and enjoyment of the Columbia River. Finally, to allow this project to proceed as designed will be to reverse course on the State’s decades-long fight to protect and recovery Oregon’s salmon populations. A. ODOT Ignored Alternatives That Would Meet the Purpose and Need But Have a Lesser Adverse Impact on Waters of the State. By narrowly defining the purpose and need of the proposed project ODOT has not only avoided the required consideration of available alternative actions and designs that could in fact meet the region’s true need—namely a forward-thinking, well thought-out transportation infrastructure—it has eliminated or glossed over important measures necessary to avoid or minimize the impact of the design it has chosen. 1. The Basic Purpose of this Project is to Improve Transportation Facilities in the Portland, OR and Vancouver, WA Region. NORTHWEST ENVIRONMENTAL DEFENSE CENTER COMMENTS ON CRC REMOVAL-FILL PERMIT APPLICATION PAGE 2 OF 25 As with any permit application, DSL must first determine the true purpose and need of the proposed action; all required determinations under the law flow from this point. As a result, each permit application must include a purpose and need statement that “must be specific enough to allow the Department to determine whether the applicant has considered a reasonable range of alternatives.” OAR 141-085-0550(5)(f). DSL’s guidance states that the purpose and need statement “should not be overly narrow or too broad” because if “too narrow, . it precludes any other alternative but the selected one” but if “too broad, . it creates too many alternatives.” Here, the purpose and need statement is overly narrow. Although the permit application materials present a number of issues to be addressed by this proposal, unquestionably the true intent of this action is to build a new, larger bridge across the Columbia River. By myopically focusing on a single bridge structure as the predetermined goal of this process, ODOT has so narrowly defined the scope of its action as to eliminate from consideration a reasonable range of alternatives to the proposed structure, placement, and construction plans. Indeed, focusing exclusively on a purpose and need that revolves around traditional means of transportation unnecessarily pigeonholes the discussion and effectively prevents the potential development of alternative and more sustainable transportation systems. The failure to properly articulate a reasonable purpose and need fatally undermined the rest of ODOT’s analysis. DSL must not fall into the same trap. 2. ODOT Failed to Analyze a Reasonable Range of Alternatives. A permit application for a DSL removal-fill permit must include an analysis of a reasonable range of alternatives. See OAR 141-085-0550(5)(o). DSL must consider the “availability of alternatives to the project” and the “availability of alternative sites for the proposed fill or removal.” ORS 196.825(3); see also OAR 141-085-0565(4). The alternatives analysis is essential because although ODOT may be given deference regarding the “need” for new transportation solutions in the Portland/Vancouver area, DSL must ensure that before it issues a removal and fill permit, it requires ODOT to present sufficient information on the available means for meeting the region’s needs. This would include information regarding the location of any river crossing and the resulting adverse effects, both of which are critical issues that may be avoided by NORTHWEST ENVIRONMENTAL DEFENSE CENTER COMMENTS ON CRC REMOVAL-FILL PERMIT APPLICATION PAGE 3 OF 25 alternative designs or proposals. OAR 141-085-0550 (an application for a removal-fill permit must provide complete and accurate information with “sufficient detail . to enable [DSL] to render the necessary determinations and decisions.”). The alternatives analysis in Section 5.1 of Attachment A does not adequately address the alternative analysis requirements. The alternatives analysis must provide DSL with “the underlying information to support its considerations” whether to issue a removal-fill permit. OAR 141-085- 0550(5)(o). To satisfy this section the permit application must include “[a] description of alternative project sites and designs that would avoid impacts to waters of this state altogether, with an explanation of why each alternative is, or is not practicable, in light of the project purpose and need,” “[a] description of alternative project sites and designs that would minimize adverse impacts to waters of this state with an explanation of why each alternative is, or is not practicable, in light of the project purpose and need,” “[a] description of methods to repair, rehabilitate or restore the impact area to rectify the adverse impacts,” and a “description of methods to further reduce or eliminate the impacts over time through monitoring and implementation of corrective measures.” Id. An inadequate alternatives analysis prevents DSL from fully analyzing the project and fully considering the extent of the issues that exist with regard to project impacts. DSL’s guidance entitled “Removal-Fill Guide” notes that the “goal for all projects that require a removal-fill permit is to explore all [of] the alternatives to derive the practicable alternative with the least impact to wetlands or waterways.” More specifically, DSL’s guidance document entitled “Preparing a Purpose and Need Statement and an Alternatives Analysis” states that the alternatives analysis “is the heart of the removal-fill decision-making process.” It further states that a good alternative analysis is built upon a “clearly documented project purpose and need,” “project-specific criteria used to evaluate alternatives,” “a clearly articulated range of alternative sites and designs that avoid and minimize impacts,” and “documented evaluation of each alternative site and design against the project criteria.” These guidance documents represent DSL’s interpretation of its statutory and regulatory requirements. ODOT’s cursory alternatives analysis precludes the analysis intended by the removal-fill statute and DSL’s regulations and guidelines. ODOT offers few alternatives NORTHWEST ENVIRONMENTAL DEFENSE CENTER COMMENTS ON CRC REMOVAL-FILL PERMIT APPLICATION PAGE 4 OF 25 to the location of the CRC project site or to the manner of the dredging and filling
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