Appeal 12361

24.50.060.F.8 Balanced Cut and Fill Required

In all Flood Management Areas of the City not addressed by Section 24.50.060 G, balanced cut and fill shall be required. All fill placed at or below the base flood elevation shall be balanced with at least an equal amount of soil material removal. Soil material removal shall be within the same flood hazard area identified in Section 24.50.050 A. through I.

Portland General Electric (PGE) is proposing to construct a sediment isolation cap over contaminated river sediments at River Mile 13.5 in the Willamette River in Portland, Oregon, during the summer of 2015 (Figure 1). The project is documented in Case File PR 15-178698/15-115367-EA. The proposed remedial action consists of installing a chemical isolation cap over contaminated river sediments to prevent receptor exposure to the impacted sediments and also reduce migration (mobility) of the contaminants of concern present in the river sediments. The isolation cap footprint is approximately 48,547 square feet (sf; 1.1 acres) located adjacent to the eastern river bank. The sediment cap occurs primarily on lands owned and managed by the Oregon Department of State Lands (DSL), which is zoned General Industrial(IG1). Approximately 1 percent of the cap (4,315 square feet or 0.099 acres) extends onto property owned by the Oregon Museum of Science and Industry (OMSI), which is zoned General Employment (EG2). The tax lots in question are 1S1E03DD-RIV and 1S1E03DD-002200, respectively (Figure 2). The isolation cap will occur entirely within the floodway of the Willamette River (Flood Hazard Zone AE; Figure 3).

The isolation cap will be extended from the eastern riverbank, across the river bottom, to the limits of the footprint (Sheets F05-F08). The isolation cap is comprised of two parts: a 60-centimeter (em; 23.6 inches) chemical isolation cap comprised of sand, which is covered by a 20- centimeter (7.9 inches) gravel armor layer. The armor layer provides resistance to erosion for the underlying chemical isolation layer. The armor layer will consist of clean stone or gravel, free of shale, clay, friable material, sand, or debris, and graded between 0.5 and 2.5 inches in diameter. The cap will key into a band of armor protection at the toe of slope to prevent lateral movement of the cap towards lower river elevations. Toe armor will be approximately 60 centimeters (23.6 inches) wide at its thickest point and will consist of 3-inch-diameter ballast rock (Figure 4; Sheets F07- F09).

The volume of fill associated with the cap is 7,450 cubic yards (cy), comprised of: 5,600 cy course sand; 1,600 cy angular gravel, 0.5-2.5 inches in diameter; and 250 cy ballast rock, 3.0 inches in diameter. In general, fill slopes for the isolation sand layer and overlying gravel would be no steeper than 3 feet horizontal to 1 foot vertical (3:1) to maintain cap stability. The ballast rock would be no more than 2 feet horizontal to 1 foot vertical (2:1) along the toe of the cap.

The proposed project is scheduled for implementation in September 2015. The project will be completed during the Oregon Department of Fish and Wildlife (OOFW) in-water work window (July 1 through October 31) footnote 1, in compliance with requirements of federal and state permits.

PGE attended a Remedial Action Exempt Review Conference on February 24, 2015 to discuss the proposed project and identify applicable city code with which the project must comply. As a result of this meeting, Portland City Code (PCC) 24.50.060.F.8 (Balanced Cut and Fill) was identified as necessary for project approval. It was further clarified that the cut balance is expected to precede or be concurrent with the proposed action resulting in fill. (footnote 2) The cut and fill balance requirement was not identified until the Remedial Action Exempt Review; consequently, a location where the cut balance could be carried out prior to, or concurrent with the proposed fill activities had not been identified and included in the state and federal permits submitted for the River Mile 13.5 project. Consequently, the project as proposed does not include balanced cut and fill per Portland City Code (PCC) 24.50.060.F.8.

Upon learning of the cut-fill balance code requirement for the River Mile 13.5 project, PGE identified a down­ river location where compliance with the cut and fill requirement could be met. The proposed compliance location, at PGE's Harborton property (Figure 1), is a restoration project designed to create off-channel habitat within the Willamette River floodplain.

The Harborton property is located at 12500 NW Marina Way, Portland, Oregon. The Harborton property is located between river miles 2.7 and 3.7, where Multnomah Channel diverges from the mainstem Willamette River. This section of the river is within the Willamette River FIRM Flood Zone AE. The Harborton property is located within the Willamette River's historic floodplain and tidally influenced lower reach. The site encompasses 73.8 acres of the west bank of the Willamette River and the southwestern bank of Multnomah
Channel. The Harborton property includes 21.2 developed acres. The remainder of the site is a mix of shoreline and remnant native riparian and backwater floodplain habits (35.3 acres) and a diked area that has been filled with dredge spoils (17.4 acres), which have disconnected from the river's floodplain influence as a result of past development. Two intermittent tributaries occur along the northern and southern boundaries of the Property, both of which have partial fish passage barriers limiting access and fish use under Willamette River and Multnomah Channel flow regimes less than bankfull conditions.

PGE proposes to restore and enhance approximately 62 acres of the Property to serve as a restoration site. Key elements of the proposed restoration activities include:

• Removal of fish passage barriers located on the southern and northern tributaries.
• Enhancement of fish habitat and riparian habitat characteristics in and along the southern tributary.
• Construction of a new northern tributary stream channel to establish a hydraulic connection to the Willamette River.
• Enhancement of fish habitat and riparian habitat characteristics in and along the new northern tributary channel.
• Excavation and re-grading of portions of the site to provide 28.1 acres of seasonally available off-
channel habitat within the floodplain.
• Preservation and enhancement of wetland area utilized by red-legged frogs.
• Excavation within wetland areas to enhance amphibian (red-legged frog) habitat.
• Control of invasive plant species found throughout the Site through removal, site re-vegetation, and routine maintenance.
• Enhancement of shoreline, riparian, and upland habitats through native re-vegetation plantings and maintenance.

Earth-moving activities will occur over 31.5 acres of the Site, providing access to off-channel habitat that will
become available when river stage is greater than 9 feet elevation City of Portland Datum (CPO) and totaling
28.1 acres of off-channel habitat at bankfull river stage (Figure 5). More than 150,000 cy of soil will be removed from the Willamette River floodplain and converted into upland habitat on the property. In total, approximately
62 acres of the site is proposed for restoration or enhancement.

Both the River Mile 13.5 and the Harborton projects are located in the Willamette River FIRM Flood Zone AE,3 which is required under 24.50.060.F.8.4 PGE proposes to comply with River Mile 13.5's balanced cut-fill requirement at the Harborton Restoration Project. All other aspects pertaining to activities at River Mile 13.5 are unchanged, as those documented in the section above. Balancing the River Mile 13.5 project's fill at the Harborton site not only meets the intent of the code, but has the advantage of creating ecological benefits for species inhabiting and passing through the Portland Harbor. The Harborton property is identified as a high­ value restoration opportunity in the City's 2009 River Plan North Reach Recommended Draft, and by the Portland Harbor Natural Resource Trustee Council's {Trustee Council) Expert Panel, as part of the Trustee's Ecological Restoration Portfolio.

At issue is the proposed timing for when the cut balance will be completed. PGE has received funding approval from the Public Utilities Commission (PUC) for the construction of the River Mile 13.5 project during fiscal 2015 and the Harborton project during fiscal 2017. The 60% design engineering for the Harborton project will be submitted to the Trustee Council for final approval at the end of August 2015. Upon approval from the Trustee Council, anticipated in fall 2015, PGE will begin state, federal, and local permitting for the Harborton project. Permitting necessary to complete the Harborton Restoration project is expected to take more than a year to prepare, submit, and review prior to agency approval. This schedule precludes construction during the 2016 construction season because of restrictions associated with the ODFW in-water work to protect salmonids. Because of the permitting schedule complexities and PUC funding requirements, the Harborton project is scheduled for construction in 2017. As such, neither project funding nor the anticipated receipt of permits and approvals will allow for the cut balance to be completed at the Harborton site in either 2015 or 2016.

PGE is proposing approval for the River Mille 13.5 project, allowing the project to proceed in 2015 as proposed, with compliance for project-related floodplain fill to be balanced at PGE's Harborton property during that project's proposed construction during 2017. To address the timing discrepancy between fill activities from the River Mile 13.5 project and cut balance compliance at the Harborton site. PGE is requesting a variance to the balanced cut and fill requirement. allowing the cut balance for River Mile 13.5 to be delayed until the 2017 construction season, two years after the River Mile 13.5 Project will be constructed.

Additionally, PGE will be proposing to construct a second sediment isolation cap over contaminated river sediments at River Mile 13.1 of the Willamette River during the summer of 2016 (Figure 1). The River Mile 13.1 remedial action has an estimated cap volume of approximately 5,000 cy, based on conceptual design (Figure 6). Design engineering and permitting for the River Mile 13.1 Project will begin in late summer 2015, with a proposed construction date in late summer 2016. PGE is proposing to satisfy the cut and fill balance for the River Mile 13.1 Project at the Harborton site as well. As such, the fill associated with both remediation projects (River Mile 13.5 in 2015 and River Mile 13.1 in 2016) is proposed to be balanced by floodplain removal at the Harborton Restoration Project in 2017. PGE requests that the variance to the cut and fill balance requirement address both remediation projects and the Harborton compliance location.

Failure to construct the River Mile 13.5 Project in 2015 would result in PGE not complying with a Department of
Environmental Quality (DEQ) Consent Order and losing PUC funding authorized to carry out the remedial action in fiscal year 2015. Additionally, delay of the River Mile 13.5 project could impact the schedule and funding for the River Mile 13.1 project, authorized for construction in 2016. The funding for the Harborton Restoration project has been authorized by the PUC for construction during fiscal year 2017. Construction of the sediment isolation cap at River Mile 13.5 is a public good that limits ecological and human receptors from existing contaminants present in the river sediments. As such, the proposed project, will incrementally improve sediment quality in the lower Willamette River, leading to improvements in water quality, aquatic life, and public health and safety. Failure to construct the River Mile 13.5 Project in 2015 will prolong ecological and human exposure to identified contaminants.

PGE has limited options where cut balance can occur, as most properties in the Willamette River floodplain are developed facilities. To complete the cut balance within state-owned lands would require additional state and federal permitting that would delay project implementation by at least a year and would jeopardize capital funding authorization already granted by the PUC. PGE has identified a location at which the cut balance for both the River Mile 13.5 and 13.1 projects can be accomplished. However, the permitting and funding requirements necessary to complete the cut balance at the Harborton Restoration site would delay implementation until 2017. As such, PGE is seeking a variance to the balanced cut and fill requirement, whereby the cut balance would be allowed to occur after the fill activities proposed at both River Mile 13.5 and River Mile 13.1.

To ensure that PGE will comply with the cut balance requirement, the City has requested that the code requirement be included as a condition of the federal Joint Permit for waterway fill, issued by the U.S. Army Corps of Engineers (Corps). PGE has included a description of the code requirement and proposed compliance in the Joint Permit Application (JPA; #NWP-2015-40), which is currently under review by the Corps. PGE has also proposed sample "condition" language to both the Corps and the City for inclusion in the Joint Permit.5 In the event that the Harborton restoration project is delayed or cancelled, PGE has committed to complete the balance cut requirement at the Harborton site during 2017.

Attached is a response to the variance criteria specified in PCC 24.50.070.8 and 24.50.070.C, as requested by the Site Development Section in their Land Use Review Response.