Date:
Jurisdiction:
Local file no.:
DLCD file no.:
February 26, 2016
City of Brookings
ANX-1-14
001-14
The Department of Land Conservation and Development (DLCD) received the attached notice of 
adopted amendment to a comprehensive plan or land use regulation on 02/25/2016. A copy of the 
adopted amendment is available for review at the DLCD office in Salem and the local government 
office. 
Notice of the proposed amendment was submitted to DLCD 55 days prior to the first evidentiary 
hearing.  
Appeal Procedures
Eligibility to appeal this amendment is governed by ORS 197.612, ORS 197.620, and 
ORS 197.830. Under ORS 197.830(9), a notice of intent to appeal a land use decision to LUBA 
must be filed no later than 21 days after the date the decision sought to be reviewed became final. 
If you have questions about the date the decision became final, please contact the jurisdiction that 
adopted the amendment. 
A notice of intent to appeal must be served upon the local government and others who received 
written notice of the final decision from the local government.  The notice of intent to appeal must 
be served and filed in the form and manner prescribed by LUBA, (OAR chapter 661, division 10).  
If the amendment is not appealed, it will be deemed acknowledged as set forth in 
ORS 197.625(1)(a).  Please call LUBA at 503-373-1265, if you have questions about appeal 
procedures.
If you have questions about this notice, please contact DLCD’s Plan Amendment Specialist at 503-
934-0017 or plan.amendments@state.or.us
DLCD Contact
NOTICE OF ADOPTED CHANGE TO A
COMPREHENSIVE PLAN OR LAND USE REGULATION
DLCO FORM 2 NOTICE OF ADOPTED CHANGE 
TO A COMPREHENSIVE PLAN OR 
LAND USE REGULATION 
FOR DLCD USE 
File No.: 
Received: 
Local governments are required to send notice of an adopted change to a comprehensive plan or land use regulation 
no more than 20 days after the adoption. (See OAR 660-0 18-0040). The rules require that the notice include a 
completed copy of this fonn. This notice form is not for submittal of a completed periodic review task or a plan 
amendment reviewed in the manner of periodic review. Use Form 4 for an adopted urban growth boundary 
including over 50 acres by a city with a population greater than 2,500 within the UGB or an urban growth boundary 
amendment over 100 acres adopted by a metropolitan service district. Use form 5 for an adopted urban reserve 
designation, or amendment to add over 50 acres, by a city with a population greater than 2,500 within the UGB. Use 
Form 6 with submittal of an adopted periodic review task. 
Jurisdiction: City of Brookings 
Local file no.: ANX-1-14 
Date of adoption: 02/22/2016 Date sent: 02/25/2016 
Was Notice of a Proposed Change (Form 1) submitted to DLCD? 
Yes: Date (use the date oflast revision if a revised Form 1 was submitted): 06/10/2014 
No 
Is the adopted change different from what was described in the Notice ofProposed Change? Yes No 
If yes, describe how the adoption differs from the proposal: 
No 
Local contact (name and title): Donna Colby-Hanks 
Phone: (541) 469-1137 
Street address: 898 Elk Drive 
E-mail: dcolbyhanks@brookings.or.us 
City: Brookings Zip: 97415-
PLEASE COMPLETE ALL OF THE FOLLOWING SECTIONS THAT APPLY 
For a change to comprehensive plan text: 
Identify the sections of the plan that were added or amended and which statewide planning goals those sections 
implement, if any: 
For a change to a comprehensive plan map: 
Identify the former and new map designations and the area affected: 
Change from industrial 
change. 
Change from commercial 
change. 
Change from 
change. 
Change from 
to 
to 
to residential 5.56 acres. A goal exception was required for this 
to residential 7. 77 acres. A goal exception was required for this 
acres. A goal exception was required for this 
acres. A goal exception was required for this change. 
Location of affected property (T, R, Sec., TL and address): 40-13-320; TL 1500 & 2000 North Bank Chetco River 
Road 
The subject property is entirely within an urban growth boundary 
'fillpjjwww.oregon.gov/LCQ/Pa_gesjforms.aspx -1- Form updated November 1, 2013 
The subject property is partially within an urban growth boundary 
If the comprehensive plan map change is a UGB amendment including less than 50 acres and/or by a' city with a 
population less than 2,500 in the urban area, indicate the number of acres of the former rural plan designation, by 
type, included in the boundary. 
Exclusive Fann Use - Acres: Non-resource- Acres: 
Forest- Acres: Marginal Lands- Acres: 
Rural Residential - Acres: Natural Resource/Coastal/Open Space -Acres: 
Rural Commercial or Industrial - Acres: Other: - Acres: 
If the comprehensive plan map change is an urban reserve amendment including less than 50 acres, or 
establishment or amendment of an urban reserve by a city with a population less than 2,500 in the urban area, 
indicate the number of acres, by plan designation, included in the boundary. 
Exclusive Farm Use- Acres: Non-resource - Acres: 
Forest - Acres: Marginal Lands -Acres: 
Rural Residential -Acres: Natural Resource/Coastal/Open Space - Acres: 
Rural Commercial or Industrial - Acres: Other: - Acres: 
For a change to the text of an ordinance or code: 
Identify the sections of the ordinance or code that were added or amended by title and number: 
For a change to a zoning map: 
Identify the former and new base zone designations and the area affected: 
Change from County Industrial (I) to City residential (R-2) 
Change from County Comm. (C-1) 
Change from 
Change from 
to 
to 
to City residential (R-2) 
Acres: 
Acres: 
Identify additions to or removal from an overlay zone designation and the area affected: 
Overlay zone designation: Acres added: Acres removed: 
Acres: 7.77 
Acres: 5.56 
Location of affected property (T, R, Sec., TL and address): 40-13-320; Tl1500 & 2000 North Bank Chetco River 
Road 
List affected state or federal agencies, local govemments and special districts: DLCD, ODOT, Curry County, 
Identify supplemental information that is included because it may be useful to inform DLCD or members of the 
public of the effect of the actual change that has been submitted with this Notice of Adopted Change, if any. If the 
submittal, including supplementary materials, exceeds 100 pages, include a summary of the amendment briefly 
describing its purpose and requirements. 
This matter was remanded by lUBA for one issue; to address Statewide Planning Goal 16 (Estuari~e Resources) 
Implementation Requirement 1. Copies of all staff reports and the final order are attached. 
httgj /www.oregon.gov/LCD/Pages/forms.aspx -2- Form updated November 1, 2013 
February 25, 2016 
City of Brookings 
898 Elk Drive, Brookings, OR 97 415 
(541) 469-1137 Fax (541) 469-3650 
TTY (800) 735-1232 
dco.l byhanks@brooki ngs.or. us 
RE: File No. ANX-1-14, Remand of request to annex two parcels on North Bank Chetco 
River Road into the City limits 
Dear Property Owner: 
This letter is to inform you of the action taken at the meeting of the Brookings City 
Council on the above referenced matter. 
At the City Council meeting ofFebruary 22,2016 the Council adopted the Final 
ORDER and Findings of Fact document approving the applicants' responses to the 
Land Use Board of Appeals remand addressing Goal16 Estuarine Resources, 
Implementation requirement 1 in the approval of the annexation. 
Please be advised that decisions of the City Council may be appealed to the Land Usc 
Board of Appeals (LUBA) within twenty-one (21) days of postmark of this decision 
notice. All documents pertaining to the City Council's decision, including the Final Order, 
are available through the Planning office located at 898 Elk Drive for public viewing from 
9 AM until noon and from 1 PM to 4:30PM and copies are available for $.25 a page. 
Ifthere are any questions, please contact me at (541) 469-1137. 
Sincerely, 
Donna Colby-Hanks 
Planning Manager 
Encl: Final Order 
cc: participants 
BEFORE THE CITY COUNCIL FOR 
THE CITY OF BROOKINGS, COUNTY OF CURRY, 
STATE OF OREGON 
In the matter of Planning Commission File No. ) 
ANX-1-14/Remand; a request for approval of the ) 
Applicant's response to the issues remanded by the ) 
Land Usc Board of Appeals, LUBA No. 2015-037 ) 
for approval of annexation, Mahar/Tribble, LCC, ) 
applicant. ) 
Final ORDER 
and Findings of 
Fact 
ORDER approving the materials submitted in response to the issue remanded by the 
Land Use Board of Appeals (LUBA), in the appeal of the City's approval ofthe annexation of 
approximately 13.33 acres ofland located in Curry County, Oregon, and commonly known as 
Township 40 South, Range 13 West, Section 32D, Tax Lots 1500 and 2000 ("the subject 
property"), being located adjacent to the eastern boundary of the North Bank Chctco River Road 
right-of-way, and approximately 3,294 feet of the N01th Bank Chetco River Road right-of-way 
from the city limits boundary to the subject property. 
WHEREAS: 
1 . In its decision of an appeal by Oregon Coast Alliance of the City of Brookings' 
approval of ANX-1-14, the Land Use Board of Appeals (LUBA) remanded with the Final 
Opinion and Order dated October 6, 2015, to the City for additional findings for Statewide 
Planning Goal 16 (Estuarine Resources) Implementation Requirement 1 to assess the potential 
impacts to the estuary from residential uses and identify methods of mitigation to avoid or 
minimize adverse impacts; and 
2. The applicant submitted materials to the city in response to the issue of the 
remand as follows: 
3. Consistent with the LUBA Remand, the City Council considered the applicant's 
materials at a public hearing on January 11, 2016 and continued to February 22, 20 16; and 
4. The planning staff presented the Council Agenda Report with recommendations, 
and by oral presentation and evidence and testimony by the applicant and the public at the public 
hearing; and 
5. At the conclusion of said public hearings, after consideration and discussion of 
testimony and evidence presented in the public hearing and submitted as written comments, the 
City Council, upon a motion duly seconded, approved the materials. 
THEREFORE, IT lS HEREBY ORDERED that the materials (Attachment A) 
submitted in response to the issue of the remand are approved. Findings and conclusions 
consistent with the LUBA Remand arc set forth as follows: 
Standards, Criteria, Findings and Conclusions for Statewide Planning Goal 16, Estuarine 
Resources 
The Statewide Planning Goal 16 Chetco River Estuary Boundary (''the Estuary 
Boundary") is located along the eastern boundary of the subject property. The Estuary Boundary 
being the line of Mean Higher High Water (MHHW). Pursuant to the LUBA Remand, findings 
assessing potential impacts to estuarine resources and measures to prevent such impacts are 
required. As directed by LUBA, the relevant provisions of Statewide Planning Goal 16, 
Implementation Requirement 1 are set forth as follows: 
I. Unlessful~y addressed during the development and adoption. of comprehensive 
plans, actions which would potentially alter the estuarine ecosystem shall be 
preceded by a ctear presentation of the impacts of the proposed alteration. Such 
activities include dredging, fill, in-water structures, riprap, log storage, 
application of pesticides and herbicides, water intake or withdrawal and effluent 
discharge, flow-lane disposal of dredged material, and other activities which 
could affect the estuary's physical processes or biological resources. 
The impact assessment need not be lengthy or complex, hut it should enable 
reviewers to gain a clear understanding of the impacts to be expected. It shall 
include information on: 
a. The type and extent of alterations expected; 
h. The type of resource(.v) affected; 
c. The expected extent (~[impacts of the proposed alteration on water quality and 
other physical characteristics of the estuary, living resources, recreation and 
aesthetic use, navigation and other existing and potential uses o.fthe estumy; and 
d. The methods which could be employed to avoid or minimize adverse impacts. 
a. The type aud extent of alterations expected; 
The applicant states in the findings that the proposed residential development of the 
property will not include any physical intrusion into the Estuary Boundary. However, 
future development would be located within close proximity to the Estuary Boundary. 
The potential impacts to the estuary resources are primarily based on pollution resulting 
from the residential development. The pollution could consist of both chemicals and 
sediment. The applicant has submitted a Statewide Planning Goal 16lmpact Assessment 
Report prepared by Frank Galea, a certified wildlife biologist with Galea Wildlife 
Consulting to fulfill the requirement of an assessment from the remand. 
b. The type ofresource(s) affected; 
According to the Impact Assessment Report provided by the applicant in the findings, the 
resources that could be impacted with future development of the subject property consist 
of wildlife resulting from water quality degradation. The location of the proposed 
development could also impact aesthetic views of the estuary from river users if not 
protected. No physical alterations within the Estuary Boundary are proposed. 
c. The expected extent of impacts ofthe pl'oposed alteration on water quality 
and other physical characteristics of the estuaty, living resources, recreation 
a1td aesthetic use, navigatio11 and other existing and pote1ttial uses of the 
estuary; 
The applicant identifies potential impacts from development of the subject property on 
the following estuarine resources: 
1. water quality degradation within the estuary from construction activities. 
2. on-going water quality degradation from residential development located 
within close proximity to the estuary. 
3. adverse impacts on wildlife utilizing estuarine resources as a result of 
water quality degradation during construction and post-construction. 
4. adverse impacts on wildlife utilizing the estuarine resource and adjacent 
lands during construction activities. 
5. adverse impacts on the aesthetic view from the estuarine resource. 
Since no physical development will occur within the Estuary Boundary, there is no 
anticipated impacts on the physical characteristics of the estuary, navigation, or existing 
and potential uses ofthc estuary. 
d. The methods which could be employed to avoid or mi1timize adverse impacts. 
Water Quality Degradation 
As stated in the Impact Assessment Report, the greatest potential for impacts to the 
estuary would be from the development's sewage and storm water runoff (sediment and 
pollution). There is also a potential for sediment to increase during the construction 
phase. 
The residential development is proposed to be served by the City of Brookings public 
sewer system. This will eliminate the potential of sewage contaminants from entering the 
estuarine resource. 
The Impact Assessment Report identified several recommendations to avoid or minimize 
adverse impacts on the estuarine resource from stonn water runoff. The use of Best 
Management Practices as outlined in the report during construction will minimize 
potential impacts. The impacted riparian area can be enhanced by the removal of invasive 
plants to improve its functioning to remove sediment. Any replanting should consist of 
plants listed in the most current Appendix A of the Coastal Oregon Riparian Silviculture 
Guide, Oregon Plan for Salmon & Watersheds. 
In addition, the applicant states in the findings that the stom1 water system for the future 
residential development of the property will be designed in accordance with the City of 
Portland Stom1 Water Manual and the Standard Local Operation Procedures for 
Endangered Species (SLOPES V). The Impact Assessment Repo1t noted this was 
recommended by Chuck Wheeler, Fisheries Biologist, Oregon Coast Branch, NOAA 
Fisheries West Coast Region. 
The use of herbicides, pesticides or fetiilizers can impact the estuarine resource. The 
applicant proposes that only herbicides, pesticides) or fertilizers approved by Oregon 
Department ofFish and Wildlife (ODFW) or the Oregon Department of Environmental 
Quality (DEQ) for use in close proximity to streams or rivers shall be applied on the 
subject property. However) these matters are under the oversight of Oregon Department 
of Agriculture. Any chemicals applied to the subject property shall be approved for 
application near aquatic environments. 
Wildlife Habitat 
Several species of wildlife where identified in the detailed habitat assessment of the Impact 
Assessment Report as well as the optimal method for protection. Prior to any distrubance on 
the subject property a wildlife biologist must survey the area. Upon discovery of the western 
pond turtle or the no1ihcrn red-legged frog, the species would need to be relocated to an 
undisturbed area. If any Migratory Bird Treaty Act nesting sites were discovered, a buffer of 
300 feet would need to be maintained until the birds fledge. 
Aesthetic Resources 
The applicant states in the findings that in order to minimize impacts to the view from 
users of the 1iver, the applicant proposes to enhance the impacted riparian area by removing 
invasive plants. The invasive species adversely impact native riparian vegetation. Any 
replanting would need to consist of plants listed in the most current Appendix A of the Coastal 
Oregon Riparian Silviculture Guide, Oregon Plan for Salmon & Watersheds. 
In addition, this approval is supported by the findings and conclusions contained in the 
staff report for the February 22, 2016 City Council meeting attached to and hereby made a part 
of this final order. The above analysis, findings and conclusions together with the Applicant's 
findings and written rebuttal, and the conditions of approval below, show that the criteria for the 
remand have been met. 
Conditions of Approval (As amended by City Council at the remand hearing of February 22, 
2016, added text is bold) 
1. Prior to approval of any new development permits or final plat approval on the subject 
property, the Applicant is required to record a deed declaration against the subject properties that 
acknowledges the existence of the Infrastructure Financing Agreement between the parties and 
its essential role in determining sewer feasibility to achieve municipal zoning. The Deed 
Declaration shall state that the existence of the Infrastructure Financing Agreement between the 
City and the Mahar/Tribble LLC was essential in approving the municipal zoning for the 
property by determining the provision of sewer was feasible and shall state that the City is under 
no obligation to extend sewer in a manner other than specified in the tenns of the Infrastructure 
Financing Agreement. 
2. Prior to issuance of any development permits or final plat approval, the owners must furnish 
the City of Brookings with a legal description prepared by a registered professional land 
surveyor that describes Shoreland Boundary as approved herein for the entire length of the 
subject propeiiies and the boundary shall be staked at 50-foot intervals by the surveyor who 
prepared the legal descriptions. Notwithstanding the foregoing, the staking of the Shoreland 
Boundary on that portion of the subject property included within the approved FEMA 
Conditional Letter of Map Revision shall be completed contemporaneously with the completion 
of the FEMA Letter ofMap Revision. 
3. Development on the site is required to comply with the following Hazard Mitigation 
conditions: 
a. Prior to issuance of any development permits or final plat approval, Applicant will 
provide a statement from an Oregon Registered Engineering Geologist that the fill placed 
four years ago satisfies the recommended 95% compaction and is appropriate for 
residential and street construction. 
b. Prior to issuance of any development permits or final plat approval, Applicant will 
provide a statement from an Oregon Registered Engineering Geologist that any new fill 
will satisfy the recommended 95% compaction and is appropriate for residential and 
street constmction. 
c. Prior to issuance of any development permits or final plat approval on the portion of 
the subject property located within the existing 1 00-year floodplain, Applicant will 
complete the Letter of Map Revision process with FEMA that establishes the revised 
1 00-year floodplain elevations and the floodway boundary for the site. 
d. In the event any future development is to be located within the 100-year floodplain, 
topographic inf01mation will be provided for development pennits that demonstrate the 
ground elevation building pads have heen raised 1-foot above the 1 00-year floodplain 
elevation. 
e. A report from an Oregon Registered Engineer or an Oregon Registered Engineering 
Geologist shall be provided with all building plans for residential foundations at the time 
ofbuilding plan submittal to the City that explain how the proposed foundation designs 
are consistent with Recommendations No.4 through 6 set forth on Page 7 of the Geologic 
Hazard Evaluation Report dated February 29, 2008, and prepared by Garcia Consultants. 
A copy of the aforementioned report heing contained in the record. 
4. Prior to any disturbance or development of the subject property, all required state and 
federal permits and approvals must be obtained and copies provided to the City. All 
construction activities on the subject property shall comply with Oregon Department of 
Environmental Quality's Best Management Practices (BMPs) in order to prevent sediment 
or fuel (leaked oils, diesel, gasoline or any other unnatural substance) movement to the 
estuary. BMPs shall include but not be limited to sediment fcJices, fill berms between 
construction areas and sensitive habitats, fuel mats under stored vehicles and construction 
equipment, use of fuel mats whenever re-fueling equipment. 
5. Prior to any disturbance or development of the subject property, a sediment fence shall 
be placed between the development and the wetland delineated in the most current report 
with concurrence from the Department of State Lands. 
6. Prior to any disturbance or development of the subject property, a riparian 
enhancement plan shall be submitted to the City for approval in conference with ODF\V. 
The plan shall show the areas where invasive species are proposed for removal and the 
method of removal. Any replanting will consist of native riparian species set forth in the 
Coastal Oregmt Riparian Silviculture Guide, Oregon Plan for Salmon & Watersheds, 
December, 2003, or any amendments thereof. 
7. All residential development on the subject property, as well as other development 
allowed by the proposed zoning designation, shall be served by the City of Brookings 
municipal sewer and water systems. 
8. The storm water system to serve the development of the subject property shall be 
prepared by an Oregon-licensed civil engineer in accordance with the City of Portland 
Storm Water Manual and the Standard Local Operation Procedures for Endangered 
Species (SLOPES V). The system must accommodate a minimum of 2.5 inches of rainfall 
in a 24 hour period or comply with the City standard, whichever accommodates the greater 
event. 
9. Only pesticides registered with the United States Environmental Protection Agency 
(U.S. EPA)and with Oregon Department of Agriculture (ODA) for application near aquatic 
environments shall be utilized on the subject propea·ty. Such applications must be in 
compliance with the label instructions and must be consistent with the Coastal Oregon 
Riparian Silviculture Guide, Oregon Plan for Salmon & Watershed, December, 2003, or any 
amendments thereof. The Applicant shall provide to the City copies of any •·cquired 
approvals/permits from the Depaa·tment of Environmental Qualify (DEQ). If the services 
of a Commercial Applicator are utilized, they must be licensed by ODA. The Applicant 
shall cause a restrictive covenant to be recorded against the subject property implementing 
this restJ·iction in the Official Records of Curry County, Oregon. A draft of the restrictive 
covenant shall be submitted to the City for approval prior to the execution and recording 
of the covenant. 
10. Prior to the initiation of construction on the subject property, including clearing and 
grading, a survey by a qualified wildlife biologist shall be conducted for the following 
species: (a) migratory birds under the Migratory Bird Treaty Act; (b) the western pond 
turtle; and (c) the northern red-legged frog. Upon discovery of the western pond turtle m· 
the northern red-legged frog, these species will be relocated to undisturbed areas of the 
subject property to avoid injury. In the event an active Migratory Bird Treaty Act nesting 
site is discovered (i.e. March through August), a 300 foot buffer will be maintained from 
the nest until such time the nestlings tledge. 
11. Prior to any disturbance or development of the subject property, a permanent riparian 
fence shall be installed to provide a visual boundary between riparian areas and non-
a·ipaa·ian areas. The fence is not intended to be a security fence. 
12. Except for potential future stream and a·iparian restoration activities, no residential 
development activities shall occur in the area established as Priority Dredge Disposal Site 
#3 or after placement of fill per the CLOMR, the areas identitled as the lOO~year 
floodplain and the Chetco Estuary Shorelands Boundary. 
LET IT FURTHER BE OF RECORD that City Council APPROVED the materials submitted 
in response to the issue of the remand based on the evidence in the record and the findings of 
fact. 
Dated this 22nd day of February, 2016 . 
.ffu~~ Ron Hedenskog, Ma 
ATTEST: 
Donna Colby-Hanks, 'Planning Manager 
~ITY OF BROOKING~ 
COUNCIL AGENDA REPORT 
Meeting Date: February 22, 20l6 
Originating Dept: PWDS -Planning 
Subject: Final staff comments on issues raised in written testimony for Land Use Board of 
Appeal's remand (LUBA No. 2015-037) Mahar/Tribble annexation File No. ANX-1-14. 
Recommended Motion: A motion to approve the Applicant's responses to the issues raised by 
Oregon Land Use Board of Appeals (LUBA) Remand; Statewide Planning Goal 16 (Estuarine 
Resources) impact assessment on the Chetco River estuary for File ANX-1-14 as well as approve 
the Remand Final Order supported by the Applicant's findings and written rebuttal, the analysis and 
findings contained in the January 11, 2016 staff report, and the responses and findings contained in 
the February 22,2016 staff report as well as the conditions of approvaL 
Background/Discussion: The City CoWlcil conducted the initial hearing on this matter on 
January 11, 2016. A continuance was requested and provision was made for additional w-ritten 
comments and rebuttal. The written comments and rebuttal are attached to this memo as Exhibits B 
thru F and Exhibits H thru J. Exhibit I contains participants rebuttal and Exhibit J is the Applicant's 
final rebuttal. All other exhibits are participant conunents. The expiration of the comment period 
was January 19,2016 at 4:30pm. On January 21, 2016, comments were received from D. Burger, 
Chctco River Watershed Council, which were submitted after expiration of the comment period and 
therefore are included in the rehuttal portion of the record as Exhibit 1-1. Following is each 
concern raised and Stairs response: 
1. This concerns channel migra tion analysis. (M. Shenvood)(A. Vileisis)(C. Page) 
Response and findings: Pursuant to LUBA, the remand hearing is limited to 
assessment of potential impacts to the estuary as well as identification of methods of mitigation 
to avoid or minimize adverse impacts. The assessment only needs to address the impacts from 
the proposed residential development. LUBA determined that the assessment did not need to 
address a possible future reduction in the riparian buffer, placement of fill in the floodplain under 
Curry County approval, or the possible future restoration of Ferry Creek. These matters are 
outside the scope of the remand hearing. 
Kenneth Phippen, National Oceanic and Atmospheric Administration/National Marine Fisheries 
Service (NOAA/NMFS), discusses channel migration of rivers in his letter dated September 8, 2014. 
He describes channel migration as a natural occurrence and does not assert that the residential 
development will affect the natural migration of the river. 
Frank Galea, certified Wildlife Biologist and author of the Impact Assessment Report provided, 
does not identify impacts to the estuary from residential development of this property as affecting 
the migration of the river. 
A letter {Exhibit H-2) was received from Donald Parlor PE, Porior Engineering, that states the 
proposed storm water mitigation will prevent any increase in flows from the development. Porior 
advises that bank stabilization using large rocks is not proposed and neither is fill or removal 
activities within the channeL In summary, Porior states the proposed project will not influence 
stream migration of the Chetco River. Based on the information from these professionals, the 
residential development of this property will have no effect on impacts to the estuary from 
migration of the river. 
2. This concerns enforcement and use of herbicides, pesticides or fertilizers on the subject 
property. (M. Shenvood)(A. ViJeisis) 
Response and findings: Galea identifies in his Impact Assessment Report that the greatest 
potential for impacts to the estuary from residential development are from sewage and storm 
water runoff. Pollutants from runoff can include herbicides, pesticides, or fertilizers. To minimize 
the potential impacts only chemicals that are approved for application near aquatic environments 
shall be utilized on the property. Condition of Approval #9 proposes a requirement for restrictive 
covenants to be recorded against the property implementing this restriction. 
The covenant would be transferred to any future property owner upon sale or division of the 
property. The purpose of the covenant would alert future owners of the limits of chemical use on 
the property. The Applicant's attorney testified at the January 11, 2016 hearing that restrictive 
covenants allow for enforcement by any property owner who is affected by the covenant. The 
attorney also testified that restrictive covenants have proven to be highly effective in restraining 
private behavior on private property. 
These types of chemicals are under the jurisdiction of Oregon Department of Agriculture (ODA) 
and they are the regulatory authority in these matters. Any potential violation would need to be 
reported to ODA for investigation and enforcement. The City does not have staff with experti se in 
these matters and according to ODA would generally have no authority. 
T. Bunch, ODA, provided recommendations for revisions to Condition of Approval #9 and those 
recommendations have been included as presented in Exhibit B-6. T. Bunch made no suggestion 
in his comments that the proposed restrictive covenants would be ineffective in preventing 
residential application of harmful pesticides. 
3. This concerns anticipated impacts on the physical characteristics of the estuary not 
being identified. (S. MaJone) 
Response and findings: The Impact Assessment Report provided by the applicant 
describes the potential for impacts to each of the identified estuarine resources. The report 
identifies pollutants, both sediment and chemicals, as well as sewage as having the greatest 
potential for impacts. 
The assessment describes each of the Federally protected wildlife species that could potentially 
occur near the subject property, suitable habitat conditions for each, and the potential for impacts 
to each from the proposed residential development. This is followed by a section that identifies 
recommendations for mitigating the impacts. The recommendations from the report have been 
included as proposed Conditions of Approval# 4 thru #10. Further, the applicant has stated that 
there is no proposal for any physical development within the Estuary Boundary. 
4. This concerns the applicant's faiJure to identifv potential adverse impacts of the 
residential development due to the unknown scope and extent of the development. (S. 
Malone)(Y. Maitland) 
Response and findings: LUBA recognized in the Final Opinion and Order for LUBA No. 
2015-037 that the subject property could potent ially be developed with 59 to 60 single family 
dwellings. In addition, LUBA explained that the City must review potential adverse impacts on 
the estuary's physical process or biological values from development allowed under the proposed 
amendments. 
S. This concerns the assertion that the applicant has not complied with all of the 
requirements of Goal 16. (S. Malone) 
Response and findings: In the remand, LUBA identified Goall6, Implementation 
Requirement 1 as needing to be addressed. Other components of Goal16 were not identified as 
not being sufficiently addressed. As the applicant's attorney states in the written rebuttal, other 
argument related to Goal 16 is outside the scope of the remand. 
6. This concerns tbe applicant's failure to acknowledge that National Marine Fisheries 
Service plavs a regulatory role under the Endangered Species Act. (S. Malone) 
Response and findings: LUBA remanded the annexation approval back to the City to 
address specific Goal16 requirements. The remand does not require that all agencies that play a 
regulatory role be identified. Therefore this concern is outside the scope of the remand. 
7. This concerns the riparian area not being sufficient to prevent sediment transport. 
(S. Malone) Impacts from polluted storm water runoff (A. Vileisis) SLOPES not adequate 
for protection (C. Wiley) 
Response and findings: The proposed conditions of approval take into consideration all 
recommendations made in the assessment report. The report advises that the riparian area is not 
sufficient alone as a buffer for sediment. However, the removal of invasive species would improve 
its functioning which is addressed in proposed Condition of Approval #6. 
The storm water created from the proposed development will be treated by a system developed 
and constructed using the City of Port land's storm water manual and the Standard local Operation 
Procedures for Endangered Species {SLOPES V) as recommended by Chuck Wheeler, a Fisheries 
Biologist working for the Oregon Coast Branch of NOAA Fisheries, as well as Best Management 
Practices from the Department of Environmental Quality. This is proposed in Condition of 
Approval #8. 
8. This concerns the impact to the estuarv from withdrawal of water to serve the 
residential development. (A. Vileisis)(C. Wiley) 
Response and findings: The applicant's attorney addressed this concern in the tina! written 
argument. [n }4ahar/Tribble I, LUBA remanded for the City to adopt more adequate findings 
regarding the availabi li ty of city water to serve the annexation territo ry relative to capacity. 
lvfahar/Tribhle I , Final Opinion and Order of LUBA No. 2014-087, page 10. On remand in 
Mahar/Tribble I, the City found that the City's municipal water system has more than sufficient 
capacity to serve the potential development of the subject property. That finding was based on 
capacities included in the City's adopted Water Master Plan, adopted in 2014. '!be current 
application does not change the Water Master Plan. Opponents' concerns regarding municipal 
water withdrawals either have already been addressed during the development of the Water Master 
Plan, or are a collateral a ttack on the adoption of that plan. In all events, the newly raised concerns 
about municipal water vtithdrawal arc not within the scope ofLUBA's remand in Mahar/Tribble II. 
9. This concern suggests a requirement is needed for rep lanting or improving the 
riparian setback area. (A. Vileisis)(M. Sherwood)(C. Page) 
Response and findings: Frank Galea, certified Wildlife Biologist and author of the 
Impact Assessment Report, identifies riparian areas as important habitats for wildlife. He states 
they act as visual and sound screens between development and natural resources such as an 
estuary as well as removing sediment from storm water. Galea recommends the removal of 
invasive plants to enhance the riparian area. Proposed Condition of Approval #6 requires a 
riparian enhancement plan to be submitted to the City for approval, in conference with Oregon 
Department of Fish and Wildlife (ODFW), prior to any disturbance or development of the subject 
property. The plan shall show the areas where invasive species are proposed for removal and the 
method of removal. Although replanting was not a recommendation of the Assessment Report, 
any replanting must consist of native riparian species. 
5. Mazur, ODFW, provided comments (Exhibit H-1), and stated that all riparian areas should be 
managed for native species not just the eastern boundary of the property. ODFW suggested that 
permanent fencing be used during and after construction to delineate the riparian areas as well a 
limiting ground disturbing activities to times when impacts to wildlife would be the least. An email 
clarifying ODFW's position was submitted by D. O'Connor as Exhibit 1-2. The email acknowledged 
that the riparian area along the Chetco River, eastern boundary of the subject property, will be 
managed. However, the downriver portion of the subject property (commonly known as Snug 
Harbor) will remain undisturbed since the area has a functioning established riparian area. The 
suggestion of ODFW for a permanent riparian delineation fence has been included as proposed 
Condition of Approval #11, shown below. 
11. Prior to any disturbance or development of the subject property, a permanent riparian 
delineation fence shall be installed to provide a visual boundary between riparian areas and 
non-riparian areas. The fence is not intended to be a security fence. 
10. This concerns modifications or impacts to (delineated wetland) Snug Harbor (A. 
Vileisis)(A. Orahoskc)(M. Shenvood) 
Response and findings: The area of the subject property adjacent to Snug Harbor has 
been identified as Priority Dredge Disposal Site #3 in the Comprehensive Plan and must be 
protected. The area is within the 100 year floodplain as well as the Chetco Estuary Shorelands 
Boundary. As a protection measure, the Brookings Municipal Code Chapter 17.24.110(8) prohibits 
residential structures within the Chetco Estuary Shorelands Boundary. 
Although the Department of State Lands wetland concurrence has expired, a small wetland has 
been identified that will require DSL and Army Corp approval for any alterations. The applicant 
has stated that no development is proposed for this area and it will remain open space. 
Proposed Condition of Approval #5 will require a sediment fence to be placed between the 
development and the delineated wetland. Proposed Condition of Approval #4 requires all 
construction activities to comply with Oregon Department of Environmental Quality's Best 
Management Practices. The applicant has suggested in the final written rebuttal that an additional 
condition of approval be drafted that clarifies the development restrictions within this area. See 
proposed Condition of Approval #12 below. With the proposed conditions of approval, impacts to 
the wetland and Snug Harbor will be minimized or eliminated. 
12. Except for potential future stream and riparian restoration activities, no residential 
development activities shall occur in the area established as Priority Dredge Disposal Site #3 or 
after placement of fill per the ClOMR, the areas identified as the 100-year floodplain and the 
Chetco Estuary Shorelands Boundary. 
11. This concerns adverse impacts to the estuary not being limited to aquatic and 
terrestrial species. (A. Oraboske) 
Response and findings: 
of concern to be identified. 
Adequate information was not provided to allow the impact 
12. This concerns the suggestion to reduce the building footprint to reduce the overall 
environmental impact. (Y. Maitland) 
Response and findings: There is no information in the record on the expected 
footprint or configuration of the dwelling units. The Impact Assessment Report identified several 
requirements to mit igate the impacts to the estuary. A reduction in the footprints ofthe dwelling 
units was not included, and therefore limits on building footprints are not proposed as a condition. 
13. This concerns claims that the City has an inadequate sewer collection system which 
effects tbe estuary. (C. Wilev) 
Response and findings: An Infrastructure Financing Agreement was entered into the 
record on page 478 of LUBA No. 2014-087. 
The City and the applicant recognize in the Agreement that the development ofthe subject 
property cannot occur without adequate public sewer infrastructure and that an expansion of the 
City's sewer collection system is needed to support the proposed project. The system will be 
required to obtain approval from Oregon Department of Environmental Quality as well as the City. 
The expansion of the sewer system is required to be constructed in compliance with the City's 
"Engineering Requirements and Standard Specifications for Public Works Infrastructure" . The 
purpose of the engineering requirements is to establish correct procedures, outline acceptable 
standards of workmanship, and indicate specifications for any projects. The standards provide 
assurances that the infrastructure is installed in a manner that protects the public as well as the 
environment such as the estuary. 
Other existing City sewer infrastructure is not affected by the project and if there are impacts to 
the estuary from this infrastructure, it is not under the scope of the remand. 
14. This concerns a suggestion to prohibit docks. (A. Vileisis) 
Response and findings: The applicant has stated numerous time no physical 
intrusions into the estuary, included docks, are proposed. 
15. This concerns the suggestion to include a conservation easement and habitat 
restoration projects (C. Page) 
Response and findings: The Impact Assessment Report identified the riparian area as 
being impacted from invasive species. The invasive species reduce the ability of native riparian 
vegetation to remove sediment from storm water runoff. The report recommended that the 
invasive species be removed. Condition of Approval #6 requires the removal of invasive species to 
minimize impacts to the view from users of the river as well as improving the functioning of the 
riparian vegetation. Th is project must be implemented prior to any disturbance or development 
of the property. This was the only habitat restoration project identified to minimize impacts to 
the estuary. 
A conservation easement will not affect the impacts of the residential development on the estuary 
nor will it mitigate the impacts. This matter is outside the scope of the remand hearing. 
16. This concerns the adequacy of the standard for the design of storm water facilities to 
accommodate 2.5 inches of rain in a 24 hour period. (A. Vileisis)(M. Sherwood)(C. Wiley) 
Response and findings: During the January 11, 2016 City Council meeting, the 
Applicant suggested that either the recommendation of Kenneth Phippen, NOAA/ NMFS, for the 
storm water facility to be designed to accommodate 2.5 inches of rain in a 24-hour period or the 
City standard be used for the development of the storm water system. The current city standard 
is for storm drainage facilities to be engineered to accommodate a 25 year flood event 
(approximately eight (8) inches of rain in a 24 hour period as mapped by NOAA). That suggestion 
has been incorporated into proposed Condition of Approval #8 with added text being underlined 
as shown below. 
8. The storm water system to serve the development of the subject property shall be prepared 
by an Oregon-licensed civil engineer in accordance with the City of Portland Storm Water 
Manual and the Standard Local Operation Procedures for Endangered Species (SLOPES V). The 
system must accommodate a minimum of 2.5 inches of rainfall in a 24-hour period or comply 
with the City of Brookings standard, whichever accommodates the greater event. 
17. This concerns the need to address impacts from flU in the floodplain. (M. 
Shcrwood)(A. Vileisis) 
Response and findings: LUBA determined in the remand that assessment of the 
impacts to the estuary did not need to address the placement of fill in the floodplain under Curry 
County approval. Therefore, this issue is not under the scope of the remand. 
18. This concerns the need to address impacts from, or a requirement to, restore Ferry 
Creek. (M. Shcnvood)(A. Vileisis)(C. Page) 
Response and findings: LUBA states in the remand opinion for this matter that the 
City is not required to address the impacts from a future project to restore Ferry Creek. The 
restoration project is not proposed as a component ofthe annexation and it is not a necessary 
element for the residential development of the subject property. Any impacts to the estuary 
from possible future restoration of Ferry Creek are outside the scope of the remand hearing. 
19. This concerns the need to require the 75 foot riparian buffer be maintained. (M. 
Sherwood)(A. Vilcisis) 
Response and findings: LUBA states in the remand opinion for this matter that the 
City is not required to address the impacts from a possible future reduction of the 75 foot riparian 
setback. This concern is outside the scope of the remand hearing. 
20. This concerns the lack of notification to Federal agencies of the Sept., 2014, hearing. 
(Y. Maitland) 
Response and findings: All federal and state agencies were notified of the current 
remand hearing of January 11, 2016, on December 17, 2015. Comments were received and are in 
the record from ODFW and ODA. 
21. This concerns the inclusion of the 2006 wetland delineation report into the record. 
(Y. Maitland) 
Response and findings: The document was previously entered into the record on 
page 200 of LUBA No. 2014-087. It remains a part of the record. It was included as an appendix to 
the Impact Assessment Report as it was cited in 4.12 Sensitive Plants as having additional 
information on potential habitat for the Western Lily. 
22. This concerns the suggestion that a traffic impact study should be required . (Y. 
Maitland) 
Response and findings: Once a proposal for development is submitted and details are 
known, the agencies with jurisdiction of the roads will be notified and comments will be sought. 
This is a requirement of the Brookings Municipal Code. However, this matter is not under the 
scope of the remand hearing. 
23. This concerns constraints identified in the Citv's findings regarding land excluded 
from the UGB expansion. (Y. Maitland) 
Response and findings: The findings referenced discuss constraints on lands that 
were not brought into the UGB with the most recent expansion. The subject property was not 
involved in the UGB expansion as it was included in the original UGB. This issue is not relevant to 
the subject property nor to the impacts on the estuary from the proposed residenti al 
development. 
24. Several concerns were raised regarding flood damages, steep slopes. Curry Countv's 
denial of an application, compaction of fill, road slippage, and lot coverage limited to 45% 
as well as amendments to Goal 14 in 2010 in regards to building on steep slopes and in the 
floodplain. (Y. Maitland) Also raised was a suggestion that the floodplain be protected and 
imm·oved. (C. Page) Another concern was that the Citv is not in compliance with existing 
development needs. {C. Wilev) The Citv should develop a plan for additional storage of 
water to reduce pumping during the summer. (A. Vileisis)(C. Wilev) 
Response and findings: As indicated by LUBA, none of these concerns regard the 
impact ofthe residential development of the subject property on the estuary and are not under 
the scope of the remand hearing. 
Analysis, findings and conclusions to Statewide Planning Goal 16, Implementation 
Requirement 1 can be tound the Council Agenda Report for the January, 11, 2016, City Council 
meeting, Exhibit A. 
Considering the materials found in Exhibit A as well as the responses and findings in this report, 
Staff finds the concerns raised have been adequately addressed. Staff recommends adoption of the 
Applicant's findings and written rebuttal, the analysis and findings contained in the stail" report 
dated January 11 , 2016, and responses and findings contained in the staff report dated February 22, 
2016 to support the approval of this remanded annexation request. 
Altachment(s): A. Draft final order 
B. Exhibits B thru F and H thru 1 
t:x.h~ b\·t r 
A r P' ~ co..V\ t- fe.\c"'-\.-\-<\\ 
BEFORE THE CiTY COUNCIL FOR 
THE CITY OF BROOKINGS, OREGON 
MAHAR/IRIBBLE, LLC. 
Applicant, 
OREGON COAST ALLL~NCE, 
) 
) 
) 
) 
) 
) 
___________ A~p~p_el_l~ __ t. ___________ ) 
Introduction 
FlLE NO.: ANX-1-!4 (Remand) 
LUBA NO.: 2015-037 
APPLICA1'l'T'S FINAL REBUTTAL 
The law firm ,)f Huycke O'C:::mnor Jarvis, LLP represents Applicam Mahar;Tribble, 
LLC, concern!ng the above-stated matter. This submittal provides final wtitten argument 
seeking approv::1l of lhe application in File N0. A..~"X-l-14 (Remand) consistently with the 
limited .;;cope of remand in Oregon Coast Alliance v. City of Brookings, LUBA ~o. 20 l5-037 
(Oct 6, 2015) (i'o~fuhar!Tribble ll), as expressly acknowledged by the City. The hearing notice on 
remand stated that the purpose of the bearing was "to consider the applicant's response to Land 
use Beard of Appeals' remand to the Ci~y's approval af the annexation of two lots," and that 
•<This hearir.g wil~ consider only the remand item in regards tc Statewide Planning Goal 16 
impact assessment on the Chetca River Estu.ary." 
Procedural Summary 
Appticani: <)WDS two parcel:; uf real property located along the Chetco Ri vcr Esma:y. The 
City approved annex:ar-iJn of the t· .. vo parcels and rezoned the land from light 
commercia..l/industrial to two-family residential. Oregon C;}ast Alliance (ORCA) appealed that 
decision in Oregon Coa:st Alliance v. City of Brookings. LUBA No. 2014-087 (Jan 6, 20 l5) 
(LVfahar;Tribble [), asserting as pertinent here: (1) a challenge to City's findings regarding Cir.y 
water supply and capacity to serve new residential development iln.d (2) a challenge to Goal t 6 
(estuarine resources) compliruv..:e regarding an impact assessment required by Goai l6, 
Implementation Requirement l. 
LUBA remanded the decision for the City to adopt more adequate written findings 
regarding the a va.ilability of the City water supply to serve the proposed ann~xation territory 
rclati ve to capacity and for the City to peLfonn a Goal l6 impact assessment. On remand in 
Afahar./J'ribble !, the City found that the City's municipal water system has more than sufficient 
capacity to serve the potential development of the subject property. Final Order and Findings of 
Fact, File No. ANX-t-t4/Remand, page 7 (April 27, 2015). That finding was based on capacities 
included in the City's adopted \Vater Master Plait, whlch was adopted in 20 t 4. Final Order and 
Findings of Fact, File No. ANX -l-l4/Rernand, page 8. The current application does not change 
the \V:lter Ma~ter Plan. The 2014 \Vater Master Plan is judicially noticeable and can be located 
online at http:/lor-brookings.civicplu$.com/A.rchiveCenter/ViewFile/Iteml399. 
?age 1 of 6 
The Cit:y al:5o determined t.hat the Applicant had adequately presented potem.ial impacc~ 
from residentiu.l devdoJ?ment t.') the estuarine environment and provided mitigation methods. 
ORCA again a.ppealed. assigning error solely to the City's adoption of the applicant's attorney's 
findings regarding Goa! l6. LUBA again remanded in Jlr[ahar!Tribble fl. 
On January ll , 2016, the City condu;.:ted a public hearing on remand from LYfahar/Tribble 
fl. The Applican•: presented evidence related to U.JBA's remand. Other parties, including ORCA 
(collectively, "opponents"), pr.escnwd testimony and submitted ev idence in opposition to the 
application. 
Argument 
In Mahar!Tribble [[, LUBA held thar, in assessing potenriai impacts to the estuary, the 
City should not compare potential impacts from l[ght commercial/industrial uses to potential 
impact.> from residential LISes. LU"BA hetd that the Applicant's aaorney' s statements are not 
substantial evidence that support technical conclusions regarding purported adverse impacts to 
the e:)tuary u.nd endangered salmon specie,;. LUBA speciflcally held that the City must assess 
and address purported impacts from storm water runoff and the residential application of 
pest[cides. LUB.A. rejected ORCA's collateral challenge co esttw.ri11c impacts from flU placed on 
the development ;;itc pursuant to a prior unchallenged county fill ·-placemenc appronl. U)BA 
remanded "for t:.'"!.e ciLy to conduct an impacts assessment free of the identified analytical error:; 
and adopt more aJequate findings and ~onditior.;:; supported by substantial evidence.·· 
JlahartTribble II, slip op at 22-23. 
a. The impact assessment and pro·posed conditions provided by Applkant sufficiently 
address and resDlve the analytical errors identified by LUBA. 
The Applicar.t'.s suJmissions on remand sufficiently identify the typ~ und extent of 
impacts to be expected. Specifically, consistently with LUBA's remand order. the Applicar'.t 
addressed potential war~r quality degradation t...l-J.at could be caused hy sewage and storm water 
runoff. See Mahar/Tribble Biological Assessment at l6 (explaining that the greateilt potential for 
impact.:: to e.stunrine resourc:es from ri:!sidenrial development would be sewage and storm water 
mnoff). 
The Impact A:sse.ssment Repott •;ugge.sts the use of best management practices such as 
sediment fences and fill berms during residential constmction would minimize scdi.r:1ent and 
chem.ical m.igrar.ion from the property into the estuary. The Impact Assessment Report also 
sugge5ted that enhancing the existing riparian area will mitigate potential future sediment and 
chemical migration from the property into the estuary. 
The AppLicant suggested and stipu iated to conditions of approval to avoid or minimize 
potential adverse i...mpacts to Chetco River estuarine resources . See Applicant's Submittal at 7. 
b. Opposition to the approval of the application on remand. 
Oppoaents raise the following challenges and concerns on remand: 
Page2of6 
\ i; The Applicant failed to specifically identify the extent and scope of any plauned 
future residential development. 
(2) The Applicant faikd to demonstrate compl ian~,;~ with all of Goal 16, including 
dcmonstra:ing a public need for residentia~ development and that no fca . ;ible Gpb.nd 
altemati ve e:<i5ts . 
(3) The Applicant flik d to respond to all prior comment letc;:;rs. 
(4) Applicam has not established that the proposed condi tton imposing restrictive 
cvvenan.ts on the usc o: pesticides can be effective in avoiding runoff into the e5tuary. 
( 5) The evidence on remand fails t0 address channel migration concerns. 
(6) The evidence on remand hils m address floodplain fill. 
(7) The City should require the App!iC9...'1t to restore Ferry Creek a.-; a condition of 
appr·::>va.l. 
(8) Snug Harbor shm.1ld be preserved as Coho rearing h~bitat 
(9) Concern thac municipai water withdrawals to accommodate residential development 
on the ~UbJeCt property will reduce water quality and quanuty in the estuary .1 
c. Applicant has adequately addressed the fo.llowing concerns : 
The proposed condition imposing restrictive covenants on the use of pesticides will .be 
effective in avoiding runoff into the estuarv. 
Applicant's atto.rr.ey testified at u."'le remand hearing that restrictive ;;ovenants allow for 
enf::>rcement by any prcperty cw·ner who is a.~ected by the covenant. Applicant's attor!ley al:3o 
testified that r<:!.-;tric~ive \;Ovenants such as those proposed have proven to be highly effective in 
cestraining private behavior on private pwperty. 
That te.sr.imcny· is suuoorted bv an email from Ted Bunch oft...~e Oregon Deoartment of 
J.. L. ~ '" 
Agriculture, commenting on the proposed condition for a restri:ti ve covenant. ~1r . Bunch 
suggested minor :b1nges in language, but nowhere suggested that the proposed restrictive 
covena:1ts would be ineffective to prevent residential applicativn of harmful pe.<iticides. ANX-l-
! Opponents submited into the remand record the Final Recovery Plan for the Southern Oregon 
/~orthern California Coast Evolutionarily Significant Unit of Coho S1lmon, NOAA Fishcri~s 
(20l4,l. A~X- 1 -1 4 (R~ma.11d) Exb G. That document is 1,841 pages long. Opponents fail to 
::;pecify what part of that document i.5 re levant to the City's decision beyond those 3almon-retatcJ 
i.ssues already speciEcally raised by opponents. In the absence of direct argument, the Applicant 
.::;annot a.r.d will nor. spcc!Jlace as to th.e sign~ficance of t.1.at document for rebuttal purpo::;e;;. 
PJ.ge 3 of 6 
14 (Remand) E:<b B-2. 
T he proposed annexation and zone change will not influence chan nel migration. 
To the eXCt!at opponer1ts speculate that channel migration may be impacced by residential 
de'ielopmenr. other thn.n the pre-approved fill on the subject property, the application does not 
propose any activity that will impact channel migration. See A.NX-l-14 (Remand) E"b H-2, 
Dona..ld Porior Letter ("the proposed project will not influence stream migration in the Chectco 
R.i ver"). 
Snug Harbor will be preserved as Coho rearing habitat. 
The Applicant hls agreed that ''the downriver portion Df the subject property (common! y 
known as the Snug Harbor a:ea) will remain undisturbed." ANX-I -l4 (Remand) Exb I. 
Appl!cant proposes an additional condition of appro'ia1 that, except for potential future 
srrcam and riparian restoration activities, no re.sidential development acti vitie.s shall occur ir. the 
a:ea downstream of the proposed l 00 year fl:::>Od elevation shoreline boundary after placement of 
fill per CLO;\-IR, as depicted on the Property Map of Proposed Development on North Shor~ of 
Che.::tco River for Comprehensive Plan Review, previously submitted to the City in File No. 
ANX -1- I. 4 and attached hereto for reference_ 
d. The opponents to t.he application raise issues that are outside the scope of .LtTBA's 
remand. The City need not and should not address those issues. 
LCBA remanded .specific aspects of the City·,; dec.i.sior:, ar .. .! the City has expres:-;ty 
limited its consideration en remand to those issues. Thus, the City need not (Uld should r"ot 
consider and decide new argumenls that are not related to or direct~d at the issues on rernand . 
Li.rnit.ing the scope of the remand avoids redundant proceedi....'1gs 9Jld fac ilita(es the legislative 
policy r.hat "time is of the ess~nce i.n reaching fmal decisions in matters involving land use." 
ORS 197.805; see also Beck v. City of Tillamook, 313 Or 148, 152 (1992). 
LUB A.'s remand order wa3 limited to previously raised purported estuarine impacts from 
stcrm water and pesticide runoff frJm residential development, and the lack of substantial 
evidence that those mnoff impact.:> cou!d and would be mitigated by storm water filtration, 
sewage conveyance systcrn.s, and the ex.isting riparian buffer. 
The fo!lowing issues are outside the 3cope cf remand and need not. be considered or 
decided by the City: 
OpposHioo; T he Applicant faiJed to specifically iden tify the extent and scope of any 
planned future residential development. 
Under tl-:e current application, the Applicant is not required to identify the s.:;ope of any 
future residential developme~t. LUBA explained that under Goal 16, ln;pl-ementation 
Requirement 1, t..."le City must re'riew «potential adve::-se impacts ::m the estuary's physical 
Page 4 of 6 
process or biobgicaJ v:tlu~s from deve!opment aHowed under rhc propo-;ed amendments." 
Mahar!Tribble ll. s1ip op at 8. That i.5 , the City mujt revie"v genera! potential impacts from 
residential development. ~oth.ing in Goal 16 or LUBA's remand order require the Applican: to 
specify the scope of future development. 
Opposition : The Applicant failed to demons trate compliance with all of Goa116, 
including demonstrating a public need for residential development and that no 
feasible upland alternative exists. 
In i'-'!ahar/Tribble !, the opponents argued only that the Applicant failed to provide an 
impact assessment a~ required by Goal 16. Any other argument related to Goal 16 i3 outside the 
5cope of remar.d and has been waived. 
Opposition: The Applicant failed to respond to all prior comment letters. 
Again, LL'BA specified the "analytical errors" t..~a~ are to be corrected on remand. 
Neither the Applicant nor the City is required to revisit and address all prior comments. 
Opposition: The evidence on remand faiJs to address floodplajn fill . 
In 1\:lahar/Tribble !7. LUBA specifically stated: 
"[T lhe i.rnpact assessment is properly limited to the 'actions' that trigger L':1p1ementadon 
Requirement 1: here, the application for an.nex::ttion and z~ne change before the city. The 
city 1:.; not required to ccm.sider the potential adverse impacts of alterations approved in 
earlier decisions :\Ot before the ciry. Accordingly, the city i.s noc required tv address 
potent1a~ adverse in:.pacts vf the previou::;ly approved Wl ~n approving the proposed 
annex::1tion and zone change." 
~·f h .rr ., b' ll ,. " T' · ' . - t"ll b b. :)'. a .. ar; t reo te .. sup op at .t. l-22. nus, an.:y pot~nUal impacts rrorn .t. on t le . :.u Ject property 
are not at i5sue on remand. 
Opposition : The City should require the Applicant to .restore Fern Creek as a 
condition of approval. 
In M~lhar!Tribble ll, LUBA specifically stated: 
''[R]esidential development under the propo5ed a..'1ncxation ar~d zone change i3 [not] 
predicated on restoration of Ferry Creek. A~ far as the record establishe:-;, (estoration of 
Ferry Creek is nor. proposed as part of thi.s application, or a neccs~ary e!ement of 
residential development of the subject property under the new R-2 zoning." 
,1t[aharl[ribble ll, slip op at 20. Thus, any potential imi?acts from restvration of Ferry Creek are 
not at issue on remand and re:;toration of Ferry Creek i;; not a necessary or appropriate ·:ondition 
of approval. 
Pag~ 3 ot· 6 
Opposition: ~{unlci paJ water withdrawals to accommodate residential development 
on tbe subject property will reduce water quality and quantity in the estuary. 
In i\t!aha.rf{ribble I, LCBA remanded for the City to adopt more adequate findings 
regarding the availability of city water to serve the annexation tetTitory relative to capacity. 
MahartTribble I, slip op at 10. On remand in Mahar/Tribble I, the City found that the City' .s 
municipal water system has more than sufficient capacity to serve the potential development of 
the subject property. That finding was based on capacities included in the City's adopted ¥later 
Ma'iter Plan, which was adopted in 2014. The current application does not change the Water 
Master Pian. Opponents' concerns regarding municipal water withdrawals either have already 
been addre.ssed during the development of the V/ater Master Plan, or are a collateral attack on the 
adoption of that plan. In all events, the newly raised concerns about municipal water withdrawal 
are not within the scope of LUBA's remand in MaharfTribble If. 
Conclusion 
Applicant ha.~ adequately presented potential estuarine impacts of the proposed 
annexation and zone ;;hange and provided method-5 to avoid or minimize adverse impacts. The 
City has restricted the remand to evidence and argl•ment related to the analytical errors ide.n tified 
by LUBA in ;vfahar!Tribble 11. Applicant ha:) adequately addressed opponents concerns that are 
within the scope of the remand. Accordingly, the City should adopt findings , impose appropriate 
conditions, and approve the application. 
Respectfully submitted February 2. 2016. 
HUYCKE O'CONNOR JARVIS, LLP 
Attachments: Property Map of Proposed Development on Nortt1 Shore of Cbectco River for 
Comprehensive Plan Review 
Page 6 of 6 
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CITY OF BROOKINGS 
COUNCIL AGENDA REPORT 
Meeting Date: January 11, 20 16 
Originating Dept: PWDS -Planning 
Subject: Request to consider Applicant's responses to Land Use Board of Appeal's remand 
(LUBA No. 2015-037) to the City's approval of annexation, File No. ANX-1-14, tax lots 2000 & 
1500 on Assessor's Map 40-13-320; approximately 13.33 acres, adjacent to the Chetco River into 
the City of Brookings. 
Recommended Motion: A motion to approve the Applicant's responses to the issues raised by 
Oregon Land Use Board of Appeals (LUBA) Remand; Statewide Planning Goal 16 (Estuarine 
Resources) impact assessment on the Chetco River estuary for File ANX-1-14 as well as approve 
the Remand Final Order with the additional conditions of approval. 
Financial Impact: 
property. 
Approximately $1,100 in additional taxes prior to development of the subject 
Background/Discussion: The original approval of the proposed annexation was 
remanded by LUBA back to the City to address the availability of water in relation to capacity and 
to address Goal 16, Estuarine Resources. City Council conducted several meetings to consider the 
remand. The staff report as well as City Council's approval of the final order including findings 
that addressed both issues. 
The Goal 16 approval was again appealed to LUBA. LUBA remanded the issue back to the 
City for assessment of potential impacts to the estuary as well as identification of methods of 
mitigation to avoid or minimize adverse impacts. LUBA determined that the assessment does not 
need to address a possible future reduction in the riparian butTer, placement of fill in the floodplain 
under Curry County approval, or the possible future restoration of Feny Creek. 
PROPOSED FINDINGS IN RESPONSE TO REMAND ISSUE 
The Applicant has submitted a set of findings (Attachment A) to support the remand issue 
described above. 
Statewide Planning Goal 16, Estuarine Resources, Chetco River Estuaa·y Boundary. The 
Chetco River Estuary Boundary runs along the eastern boundary of the subject property and is 
identified as the Mean Higher High Water (MHHW) line. Pursuant to the LUBA Remand, 
findings assessing potential impacts from residential development on the estuarine resources 
and measures to prevent such impacts are required. The relevant provisions of Statewide 
Planning Goal 16 are set forth in the Applicant's findings {Attachment A) and are below. 
ANALYSIS, FJNOINGS AND CONCLUSIONS to Statewide Planning Goal 16, 
Implementation Requirement 1 
1. Unless folly addressed during the development and adoption ofcomprehensive 
plans, actions whic:h would potentially alter the estuarine ecosystem shall be 
preceded hy a clear presentation of the impacts of the proposed alteration. Such 
activities include dredging, fill, in-water structures, riprap, log storage, application 
o,( pesticides and herbicides, water intake or withdrawal and effluent discharge, 
flow-lane disposal of dredged material, and other activities which could affect the 
estuwy's physical processes or biological resources. 
The impact assessment need not be lengthy or complex, hut it should enable 
revie'~<vers to gain a clear understanding of the impacts to be expected. It shall 
include information on: 
a. The type and extent of alterations expected,· 
b. The type of resource(s) affected; 
c. The expected extent of impacts of the proposed alteration on water quality and 
other physical characteristics of the estuary, living resources, recreation and 
aesthetic use, navigation and other existing and potential uses of the estuary; and 
d. The methods which could be employed to avoid or minimize adverse impacts. 
a. The type and extent of alteratimrs expected; 
The applicant states in the findings that the proposed residential development of the 
property will not include any physical intrusion into the Estuary Boundary. However, future 
development would be located within close proxi1nity to the Estuary Boundary. The 
potential impacts to the estuary resources are primarily based on pollution resulting from the 
residential development. The pollution could consist ofboth chemicals and sediment. The 
applicant has submitted a Statewide Planning Goal 16 Impact Assessment Report prepared 
by Frank Galea, a certified wildlife biologist with Galea Wildlife Consulting to fulfill the 
requirement of an assessment from the remand. 
b. The type of resource(s) a.ffected; 
According to the lmpaet Assessment Report provided by the applicant in the findings, the 
resources that could be impacted with future development of the subject property consist of 
wildlife resulting from water quality degradation. The location of the proposed 
development could also impact aesthetic views of the estuary from river users if not 
protected. No physical alterations within the Estuary Boundary are proposed. 
c. The expected extent of impacts of the proposed alteration 011 water quality and 
other phy.'!ical characteristics of the estuary, living resources, recreation and 
aesthetic use, navigation and other existing and potential use.-.,· of the estuary; 
The applicant identifies potential impacts from development of the subject property on the 
following estuarine resources: 
I. water quality degradation within the estuary from construction activities. 
2. on-going water quality degradation from residential development located 
within close proximity to the estuary. 
3. adverse impacts on wildlife utilizing estuarine resources as a result of water 
quality degradation during construction and post-const1uetion. 
4. adverse impacts on wildlife utilizing the estuarine resource and adjacent 
lands during construction activities. 
5. adverse impacts on the aesthetic view from the estuarine resource. 
Since no physical development will occur within the Estuary Boundary, there is no 
anticipated impacts on the physica) characteristics of the estuary, navigation, or existing and 
potential uses of the estuary. 
d. The methods which could be employed to avoid or minimize adverse impacts. 
Water Quality Degradation 
As stated in the Impact Assessment Report, the greatest potential for impacts to the estuary 
would be from the development's sewage and stonn water runoff(sediment and pollution). 
There is also a potential for sediment to increase during the construction phase. 
The residential development is proposed to be served by the City of Brookings public sewer 
system. This will eliminate the potential of sewage contaminants from entering the 
estuarine resource. 
The Impact Assessment Report identified several recommendations to avoid or minimize 
adverse impacts on the estuarine resource from storm water runoff. The use of Best 
Management Practices as outlined in the report during construction will minimize potential 
impacts. This is included as a requirement in proposed condition of approval #4. The 
impacted riparian area can be enhanced by the removal of invasive plants to improve its 
functioning to remove sediment. Any replanting should consist of plants listed in the most 
cunent Appendix A of the Coastal Oregon Riparian Silviculture Guide, Oregon Plan for 
Salmon & Watersheds. This is included in proposed condition of approval #6. 
In addition, the applicant states in the findings that the storm water system for the future 
residential development of the property will be designed in accordance with the City of 
Portland Stann Water Manual and the Standard Local Operation Procedures for Endangered 
Species (SLOPES V). The Impact Assessment Report noted this was recommended by 
Chuck Wheeler, Fisheries Biologist, Oregon Coast Branch, NOAA Fisheries West Coast 
Region. This is addressed with proposed condition of approval #8. 
The use of herbicides, pesticides or fertilizers can impact the estuarine resource. The 
applicant proposes that only herbicides, pesticides, or fertilizers approved by Oregon 
Deprutment of Fish and Wildlife (ODFW) or the Oregon Department of Environmental 
Quality (DEQ) for use in close proximity to streams or rivers shall be applied on the subject 
propc1ty. However, these matters are under the oversight of Oregon Department of 
Agriculture. Any chemicals applied to the subject property shall be approved for 
application near aquatic environments. Proposed condition of approval (#9) will require a 
restrictive covenant to be recorded in the Official Records of Curry County. The covenant 
would be transferred to any future property owner upon sale or division of the subject 
property. This will alert any future owners of the limits of chemical use on the property. 
Wildlife Habitat 
Several species of wildlife where identified in the detailed habitat assessment of the Impact 
Assessment Report as well as the optimal method for protection. Prior to any distrubance on 
the subject propetty a wildlife biologist must survey the area. Upon discovery of the western 
pond turtle or the northern re-legged frog, the species would need to be relocated to an 
undisturbed area. If any Migratory Bird Treaty Act nesting sites were discovered, a buffer of 
300 feet would need to be maintained until the birds fledge. This is included in proposed 
condition of approval #1 0. 
Aesthetic Resources 
The applicant states in the findings that in order to minimize impacts to the view from users of 
the river, the applicant proposes to enhance the impacted riparian area by removing invasive 
plants. The invasive species adversely impact native riparian vegetation. Any replanting 
would need to consist of plants listed in the most cunent Appendix A of the Coastal Oregon 
Riparian Silviculture Guide, Oregon Plan for Salmon & Watersheds. This impact is addressed 
in proposed condition of approval #6. 
All recommendations from the Impact Assessment Report have been incorporated into the 
draft final order as conditions of approval. 
Staff recommends adoption of Applicant's tindings (Attachment A) as well as the analysis and 
findings contained in the staff report. 
Policy Considerations: None. 
Attaclunent(s): A. Applicant's findings 
B. Draft final order 
C. Agency comments 
BEFORE THE CITY COUNCIL FOR 
THE CITY OF BROOKINGS, OREGON 
MA HARITRIB B LE, LLC, 
Applicant, 
OREGON COAST ALLIANCE, 
) 
) 
) 
) 
) 
) 
___________ A~p~p_el_la_n_t. ___________ ) 
Fll..,E NO.: ANX-1-14-(Rcmand) 
LUBA NO.: 2015-037 
APPLICANT'S SUBMITTAL 
This firm represents Maharriribble, LLC, an Oregon limited liability company ("Applicant"), 
concerning the above-stated matter. The purpose of this submittal is to submit findings and 
supporting evidence pursuant to remand instructions provided by the Land Use Board of Appeals 
in its Final Opinion and Order dated October 6, 2015. 
A. Property Background. 
("Applicant"), is the owner of certain real property located in Curry County, Oregon, and 
commonly known as Township 40 South, Range 13 West, Section 320, Tax Lots 1500 and 2000 
(collectively, "the subject property''). The subject property is approximately 13.33 acres in size 
and is undeveloped. The subject propeny is located within the City of Brooking's ("the City") 
Urban Growth Boundary and has a County zoning designation of Commercial (C-1) and 
Industrial (I). The southern portion vf the subject property (Tax Lot 2000) has a "Conunercial" 
Comprehensive Plan designation and the northern pottion of the subject property (Tax Lot 1500) 
has an "Industrial" Comprehensive Plan designation. The extreme southern portion of the 
subject property, being the area adjacent to Snug Harbor, is designated as Priority Dredge 
Material Disposal Site #3. The subject prope1ty fronts on the North Bank Chetco River Road 
right-of-way. Municipal water is available to the subject property pursuant to a 14" water main 
located in the North Bank Chetco River Road right-of-way. Public sewer will be provided to the 
subject propetty pursuant to a proposed Infrastructure Financing Agreement between the 
Applicant and the City ("the lnfrastructure Agreement"). Pursuant to the Infrastmcture 
Agreement, Applicant, at Applicant's expense, shall install a sewage lift station with sufficient 
capacity to serve a maximum of 217 Equivalent Dwelling Unit's ("EDU") and a pressurized 3-
inch sanitary sewer main. 
The Chetco River runs along the subject property's entire southeastern boundary line. Ferry 
Creek traverses the subject property but is located within an enclosed culvert. The subject 
property has been heavily impacted from historical commerciaVindustrial uses resulting in a 
significant degradation of the riparian habitat along the Chetco River. The Statewide Planning 
Goal 16 Chetco River Estuary Boundary ("the Estuary Boundary") is located along the eastern 
boundary of the subject property. The Estuary Boundary being the line of Mean Higher High 
Water (MHHW). 
APPLICANT'S Sl:BMITTAL 
File No. ANX-1-14-(Remand) 
Page 1 of7 
B. Procedural History. 
Applicant submitted a petition/land use application with the City of Brookings, Oregon ("the 
Application .. ). The Application consisted of four (4) components: (a) annexation of the subjecl 
propeny into Respondent's city limits; (b) amending the comprehensive plan designation for the 
subject property from Commercial/Industrial to Residential ; (c) changing the zoning designation 
of the subject property from Commercial/Industrial to Two-Family Residential (R-2); and (d) 
amending the Chetco River Estuary Shorelands Boundary along the subject property's 
southeastern boundary. 
A public hearing was held before the City of Brookings City Council ("the Council") on 
Seplembcr 8, 20 14. The Council approved the Application pur.su ant to the adoption of 
Ordinance 14-0-73 8 ("the Decision"). The Decis io n was appealed to the Land Use Board of 
Appeals (LUBA) by Oregon Coast Alliance (ORCA). ln a Final Opinion and Order dated 
January 6, 2015, LUBA remanded the Decision to the City fo r additional findings addressing the 
fo llowing: (a) municipal water capacity to serve the future development of the subject property; 
and (b) Statewide Planning Goal 16 (Estuarine Resources) ("the LUBA Remand" ). The 
remainder of the Decision was affirmed by LUB A. 
Consistent with the LUBA Remand, a public hearing was held oo April 13, 2015, before the 
C01Jnci1 to consjder additional testimony and evidence to squarely address the ''availabiJj ty" of 
domestic water "relative to capacity" fo r the potential development of the subject property based 
on the Application. The public hearing was not open for issues relating to Goal l6 (Estuarine 
Resources) because the LUBA Remand concerning Goal 16 was for insufficient findings and 
was not evidence bas~d. The Council approved the Application again on April 27, 20 l5 ("the 2nd 
Decision). 
The 2nd Decision was appealed to LUBA by ORCA. In a Final Op inion and Order dated 
October 6, 2015, LUBA remanded the Decision to the City in order to conduct a Goal 16 impact 
assessment ("the 2 nd Remand). LUBA made it clear that the impact assessment must be 
supported by substantial evidence, specifically, expert testimo ny. Pursuant to the 
aforementioned LUBA Remands, all other issues involv ing the application have been resolved. 
One important LUBA determination was that the remaining fill to be placed on the subject 
property pursuant to a prior CLOMR approval and fill and grade permit issued by Curry County 
is not to be considered in the Goal 16 impact assessment set forth below. 
C. Goal 16 Impact Assessment. 
As directed by LUBA, the relevant provision~ of Slatewide Planning Goal 16 are set forth as 
follows: 
1. Unless .fully addressed during the development and adoption of comprehensive 
plcms, actions which would potentially alter the estuarine ecosystem shall be 
preceded by a clear presentation of the impacts of the proposed alteration. Such 
activities include dredging, fill, in-water structures, riprap, log storage. 
application of pesticides and herbicides, water intake or withdrawal and effluent 
APPLICANT'S STJB MITIAL 
File No. A.NX-1-14-(Rcmand) 
Page 2 of 7 
discharge, j7ow-lane disposal of dredged material, and other activities which 
cmtld ajfect the estuary's physical processes or biological resources. 
The impact aswssment need not be lengthy or complex, but it should enable 
reviewers to gain a clear understanding of the impacts to be expected. It shall 
include information on: 
a. The type and extent of alterations expected; 
b. The type of resource( s) affected: 
c. The expected extent of impacts of the proposed alteration on water quality and 
other physical characteristics of the estuary, living resources, recreation and 
aesthetic use, navigation and other existing and potential uses of the estuary,· and 
d. The methods which could be employed to avoid or minimi<.e adverse impacts. 
Goal 16; lrnplementation Requirements 1. 
1. Type and extent of alterations expected. 
As set forth above, the Statewide Planning Goal 16 Chetco River Estuary Boundary is located 
along the eastern boundary of the subject property. The Estuary Boundary being the line of 
Mean Higher High Water (MHH\V). A map depicting the Estuary boundary is attached hereto as 
Exhibit "A" ("the Map"). The approvai of the Application will not result in a physical intrusion 
into the Estuary Boundary. In other words, no actual development will occur within the Estuary 
Boundary. However, the fumrc residential development of the subject propetty consistent with 
the Application would be locuted within close proximity to the Estuary Boundary. Applicant 
acknowledges that potential impacts on the estuary resource from development located outside 
the Estuary Boundary are possible unless such potential impacts are resolved or mitigated. Such 
potential impacts on the estuary resources are primarily based on pollution resulting from the 
contemplated residential development of the subject property. Such pollution consists of both 
chemicals (e.g. fertilizers, sewage and roadway pollutants) and sediment (See Habitat 
Assessment for Federally-Listed Wildlife Species, Statewide Planning Goal 16 Estuary 
Resource/l· Impact Assessment Report attached hereto as Exhibit HB") ("the Impact Assessment 
Report"). The Impact Assessment Report was prepared by Frank Galea, a certified wildlife 
biologist with Galea Wildlife Consulting. 
2. Types of resources affected. 
The resources that could be affected in conjunction with the future development of the subject 
property primarily consist of impacts on wildlife, including fisheries, resulting from water 
quality degradation. Also, the location of the proposed development could adversely impact 
aesthetic values of the estuary if such values are not properly protected. As set forth above, the 
Application will not authorize any physical alterations within the Estuary Boundary. 
APPLlCANTS SUB~H'ITAL 
File No. ANX-1-14-(R~mand) 
Page 3 of 7 
3. Potentiallmpacts. 
The potential impacts on the estuarine resources resulting from the approval of the Application 
consist of the foJJowing: (a) water quality degradation within the estuarine resource from 
construction activities; (b) on-going water quality degradation from the residential development 
being located in close proximity to the estuarine resource; (c) adverse impacts on wildlife, 
including fisheries, utilizing estuarine resources as a [esult of water quality degradation during 
construction and post-construction; (d) adverse impacts on wildlife utilizing the estuarine 
resource and adjacent lands during construction activities; and (e) adverse impacts on aesthetic 
resources of the estuarine resource (i.e. view from the estuarine resource). There are no 
anticipated impacts on the physical characteristics of the estuary, navigation, or existing potential 
uses of the estuary because no physical development will occur within the Estuary Boundary. 
4. 
a. 
follows: 
Methods to Avoid or Minimize Adverse Impacts. 
Water Quality Degradation. The Impact Assessment Report states, in part, as 
The greatest potential for impacts to the Chetco River estuary or any adjacent 
wetlands would be from. the development's sewage and srom1 water runoff 
Although the project is only 1.3 miles from the ocean and thereby this portion of 
the Chetco River is not likely to be u!J·ed as spawning habitat for salmonids, 
juvenile salmonids likely frequent the area during low river flow months. 
Juvenile salmonids, amphibians and aquatic insecrs can he directly affected by 
pollutants entering the estuary. Every effort should be made not to allow 
sediments or chemicals to migrate from the project .fite, during construction or 
ajier the development is completed. Impact Assessment Report, Pg. 14. 
As to construction activities in conjunction with the development of the subject property, the 
Impact Assessment Report states: 
No alterations to salmonid habitats are currently proposed for this property. Any 
construction. vegetation clearing or heavy eqaipment activity on the property has 
the potential to increase sediment flows to the Chetco River. The limited amount 
of current riparian habitat between development and the river is insufficient as a 
buffer to prevent sediment transport. Any activities as described should be 
mitigated with the best management practices (BMPs) possible, in order to 
prevent sediment or fuels (leaked oils, diesel or gasoline or any other unnatural 
substance) movement to the river. BMPs can include sediment fences, fill benns 
between construction areas and sensitive habitats, fuel mats under stored vehicles 
and construction equipment, use offuel mats whenever re-filling equipment, etc. 
An enhanced riparian area will eventually mitiRate by providing an enhanced 
buffer to the river from construction and other activities. Impact Assessment 
Report, Pg. 12. 
APPLICANT'S SUBMITI AL 
File No. A..L'\l'X-1-14-(Remand) 
Page 4 of7 
In order to avoid or minimize adverse impacts on the estuarine resource, Applicant proposes that 
all construction activities on the subject property will comply with Best Management Practices 
as set forth in the Impact Assessment Report in order to minimize sediment and unnatural 
substances (i.e. diesel, oil, etc.) transported into the estuarine resoun;e during rhe construction of 
any development on the subject properly. 
The fmpacts Assessment Report also states that a "functioning riparian area can also act as 
barriers to sediment movement" and recommends that the existing impacted riparian areas be 
enhanced by the removal of invasive plants .such as the Himalayan blackberry. Accordingly, in 
order to avoid or minimize adverse impacts on the estuarine resource, Applicant proposes to 
enhance the impacted riparian areas by removing invasive plants such as the Himalayan 
blackberry. Any replanting wilhin the riparian area will consist of plants set forth in the Plant 
List for Riparian Zones on the South Coast of Oregan, being Appendix A to the Coastal Oregon 
Riparian Silviculture Guide, Otegon Plan for Salmon & Watersheds, December, 2003, or any 
amendments thereof. 
In order to avoid or minimize adverse impacts on the estuarine resource, Applicant proposes that 
all development on the subject property, being the proposed residential development, will be 
served by t."le City's public sewer system (See Impact Assessment Report. Pg. 14). The 
foregoing will eliminate the potential of sewage contaminants from the anticipated residential 
development from entering the estuarine resource. Public sewer will be provided to the subject 
property pursuant to the Infrastructure Agreement. 
In order to avoid or minirnizc adverse impacts on the estuarine resource, Applicant proposes that 
the storm water system to serve the development of the subject property be designed in 
accordance with the City of Portland Storm Water Manual and the Standard Local Operation 
Procedures for Endangered Species (SLOPES V). In a letter attached hereto as Exhihit "C" 
("the Porior Letter"), Don Porior, an Oregon registered professional engineer with Porior 
Engineering, LLC, states, as follows: 
This Letter responds to our proposed Storm Water designj(H the Tribble Property 
Development in Brookings (the subject property). The final approved plans will 
be developed using the City of Portland Storm Water Manual and the Standard 
Local Operation Procedures for Endangered Species (SLOPES V) as 
recommended by Chuck Wheeler, a Fisheries Biologist working for the Oregon 
Coast Branch NOAA Fisheries West Coast Region. 
We concur with Mr. Wheeler that the use of the Storm Water Manual and Slope V 
compliance will reduce the potential for adverse impacts on the Chetco estuary 
resources as water are jittered through vegetative filter systems or comparable 
prior to entering the estuary. Porior Letter (explanation added). 
The Impact Assessment Report also states: 
A storm water runoff' system is being designed by an engineer, using the City of 
Portland Stomt Water Manual and the Standard Local Operation Procedures for 
APPLICANT'S SUBMITI,\L 
Fiie No. ANX-1-14-(Rcmand) 
Page 5 of7 
Endangered Species (SLOPES V). Use of the Ston/l Water Manual ond Slope V 
compliance wit! reduce the potential for adverse impacts on the Chetco estuary 
resources as water are filtered through vegetative filter systems, bioswales and/or 
comparable uses prior to entering the estuary. Impact A:>sessment Report, Pg. 
14. 
ln order to avoid or mmtmtze adverse impacts on the estuarine resource, specifically water 
quality. Applicant proposes that no herbicide,.;;, pesticides or fertilizers shall be applied on the 
subject property unless such herbicides, pe.-;ticides and fertilizers are: (a) approved by ODFW or 
the Oregon Department of Environmental Quality (DEQ) for use in close proximity to streams 
and rivers (i.e. environmentally friendly products); and (b) such applications are consistent with 
the Coastal Oregon Riparian Silviculture Guide, Oregon Plan for Salmon & Watersheds, 
December, 2003, or any amendments thereof. 
b. Wildlife Habitat. 
In order to avoid or minimize impacts on estuarine based wildlife (e~clnding fisheries) and their 
respective habitats, Applicant proposes to implement the mitigation measures set forth in the 
Impact Assessment Report. The Impact Assessment Report contains a detailed habitat 
assessment of estuarine based wildlife. Species of concern specific to this Application include: 
(a) migratory birds under the Migratory Bird Treaty Act; (b) the Western pond turtle; and (c) the 
Northern Red-legged frog. In order to protect the aforementioned species , the hnpact 
Assessment Report recommends that a wildlife biologist survey the designated construction area 
prior to the initiation of construction activities. Upon discovery of Western pond turtle(s) andlor 
Northem Red-legged frog(s), these species should simply be relocated to the undisturbed areas of 
the subject property to avoid injury. In the event an active Migratory Bird Treaty Act nesting 
site is discovered (i .e. March through August), a 300 foot buffer is recommended until such time 
the birds fledge (See Impact Assessment Report. Pg. 10). Applicant agrees to implement the 
Impact Assessment Report's recommendations as conditions of approval. 
c. Aesthetic Resources. 
In order to rninirllize impacts on the aesthetic values of the estuarine resource (e.g. view from 
users of the estuary such as boaters), Applicant proposes to enhance the existing impacted 
riparian area. Specifically, Applicant proposes to enhance the impacted riparian areas by 
removing invasive plants such a<; the Himalayan blackberry, which are unsightly and adversely 
impact native riparian species. Any replanling of the impacted riparian area will consist of 
native riparian species set fort.~ in the Coastal Oregon Riparian Silviculture Guide, Oregon Plan 
for Salmon & Watersheds, December, 2003, or any amendments thereof. 
D. Conditions of Approval. 
Based on the foregoing. Applicant stipulates to the following conditions of approval in order to 
avoid or minimize adverse impacts oo the Chetco River estuarine resource and proposes that the 
following conditions of approval be incorporated into an order approving the AppLication: 
APPLICANT'S SUBMITTAL 
Fik No. A.NX-1-14-(Remand) 
Page 6 of7 
l. All construction activities on the subject properly shall comply wi th Best Management 
Practices (BMPs) in order to prevent sediment or fuel (leaked oils, diesel or gasoline or 
any other unnatural substam;e) movement to the estuary. BMPs shall include but not be 
limited to sediment fences, fill berms between construction areas and sensitive habitats, 
fuel mat.s under stored vehicles and construction equipment, use of fuel mats whenever 
re-filling equipment. 
2. The existing degraded riparian area along the subject property's eastern boundary shall be 
enhanced by the removal of invasive species such as Himalayan b lackberry which is 
prevalent Any replanting of tbe degraded riparian area will consist of native riparian 
species set forth in the Coastal Oregon Riparian Silviculture Guide, Oregon Plan fnr 
Salmon & Watersheds, December, 2003, or any amendments thereof. 
3. All residential development on the subject properly, as well as other development 
allowed by the proposed zoning designation, shall be served by the City's public sewer 
system and the City's municipal water system. Public sewer wi!J be provided to the 
subject property pursuant to the Infrastructure Agreement. 
4. The storm water system to serve the development of the subject property shall be 
developed in accordance with the City of Portland Storm Water Manual and the Standard 
Local Operation Procedures for Endangered Species (SLOPES V). 
5. No herbicides, pesticides or fertilizers shal.l be applied on tbe subject property uniess such 
herbicides, pesticides and fertilizers are: (a) approved by ODFW or the Oregon 
Department of Environmental Quality (DEQ) for LLse in close prox.imity to streams and 
rivers (i.e. environmentally friendly product..,); and (b) suc:h applications are consistent 
with the Coastal Oregon Riparian Silviculture Guide, Oregon Plan for Salmon & 
Watersheds, December, 2003, or any amendments thereof. Applicant shall cause a 
re.stricti ve covenant to be recorded against the subject property implementing this 
restriction in the Official Records of Curry County, Oregon. A draft of the restricti ve 
covenant shal.t be submitted to the City for approval prior to the execution and recording 
of the covenant. 
6. Prior to the initiation of construction on the subject property, including clearing and 
grading of tbe subject property, a survey by a qualified wildlife biologist shall be 
conducted for the following species: (a) migratory birds under the Migratory Bird Treaty 
Act; (b) the Western pond turtle; and (c) the Northern Red-legged frog. Upon discovery 
of ·western pond turtle(s) and/or Northern Red-legged frog(s), the:se species will simply 
be relocated to undisturbed areas of the subject property to avoid injury. In the event an 
active Migratory Bird Treaty Act nesting site is discovered (i.e. March through August), a 
300 foot buffer will be maintained from such nest until such time the birds fledge. 
APPUCANT' S SUB MITT .L\.L 
File No. A.t"\IX- l-14-(Remand) 
Page 7 of7 
DANIEL B. O'CONNOR, OSB No. 950444 
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Exhibit "A" 
Pa2e 1 of 1 
c.m..n <~~ , rt r...-.. ~oo 
R- .21Afti1CI4 
GALEA WILDLIFE CONSULTING 
200 Raccoon Court Crescent City California 9553 I 
Tel: 707-464-3777 
E·mail: frankgalea@charter.net Web: www.galeawildlife.com 
HABITAT ASSESSMENT FOR FEDERALLY -LISTED WILDLIFE 
SPECIES, STATEWIDE PLANNING GOAL 16 ESTUARY RESOURCES 
IMPACT ASSESSMENT REPORT, MAHAR PROJECT SITE, 
BROOKINGS, OREGON 
Submitted to: Mr. Daniel O'Connor 
Huycke O'Connor Jarvis, LLP 
823 Alder Creek Drive 
Medford, OR 97504 
Prepared by: Frank Galea, Certified Wildlife Biologist 
E-mail: frankgalea@charter.net 
Galea Wildlife Coru.-ulting 
200 Raccoon Court 
Crescent City, CA 95531 
Submitted: December 2015 
By: 
Exhibit "B" 
P~O'P 1 of 10 
TABLE OF CONTENTS 
Section 
1.0 StJMMARY ............................................................................................................................... I 
2.0 Il'JTRODUCTION ...................... ..... ................... .. .......................... .................... ..... .... ......... ..... 1 
2.1 Statewide Planning Goal 16 ...... .. ...... .. .. ......................................................................... ... 3 
2.2 Environmental Setting ......................................................................................................... 3 
2.3 Physical Environment .... ..................................................................................... 0 .............. 4 
2.3 Regulatory Context .......................... .................... o ........... 0 ........................................ 0 ........ 4 
300 rvtETHODS 00 ....................... o ..... oo ........... 0 ........................................ 0 ............................... 0 ......... 5 
3.1 Records Search .................................................................................................................... 5 
3.2 Field Reconnaissance .............. .......................................................................................... 6 
4.0 RESULTS ........................................ ..... ..... .................................................. ......................... ... 6 
4.1 Records Search .................... .. .. ................................. ........................................................... 6 
4.2 Habitat Analysis for Federally Protected Wildlife ......... ................................................... 6 
4.3 Marbled murre let ............................................ 0 .................................................................. 6 
4.4 Northern spotted owl ......................................................................................................... 8 
4.5 Snowy plover ...................................................................................................................... 8 
4.6 Bald eagle ........ ................................................................................................. ................. 9 
4.7 Osprey ............................ ., .............................................. ............. ... ....... .. ...... ,. .................... 9 
4.8 Migratory Bird ·rreaty Act ................................................................................................ 10 
4.9 Western pond turtle ............................................................................................................. 10 
4.10 Red-legged frog ................................................................................................................. 11 
4.11 Sal.monids ......... ..... ................ ...................................... .................................................... 11 
4.12 Sensitive Plants .............................................................................................. ................ 12 
4.13 Invasive Plants ............................................................................................................... 12 
4.14 Wetlands ... , ................................................................................................................... 13 
4.15 Ferry Creek ....................... ........................................................................... ., ................ 13 
4.16 Riparian Habitats ................................ ...... ......... .............. ........................ .. .................. .... 14 
5.0 POTENTIAL IMPACTS OF DEVELOPMENT TO CHETCO RIVER ESTUARY ............ 14 
6.0 REC01vWENDA TIONS ........................................................................................................ 15 
7.0 STAFF QUALIFICATIONS .................................................................................................. 15 
8.0 LITERATURE CITED .................. ................... ..................................... .. ............................... 16 
FIGURES 
1 Map showing Location of Proposed Project Site .................................................................... 2 
TABLES 
I Federally Protected Wildlife Species Potentially Occurring in the Area ................................ 7 
2 Sensitive Plant Species Potentially Occurring in the Area .................................................. 12 
APPENDIX A. 2006 Wetland Delineation Report .... , .... .......... 0 •••••••••• 0 •••• • •••• ••••••• •••••• , ••• 17 
-I-
.Mahar/Tr;bble Biological As:~essment Galea Wildlife Consulting December 2015 
Exhibit "B" 
P~vP? ()f '\{) 
1.0 SUMMARY 
The Applicant (Mahar/Tribble, owners) propose to prepare a historically industrial property along 
the Chetco River for future development (Figure 1). Galea Wildlife Consulting (GWC), 
Incorporated, of Crescent City, California was contracted by the Applicant's agent to provide a 
biological assessment to detennine the potential for tederal and state-protected species being within 
the disturbance area of the project. 
The Oregon Statewide Planning Goal 16 Chetco River Estuary Boundary ("the Estuary Boundary") is 
located along the eastern boundary of the subject property. The Estuary Boundary being the line of 
Mean Higher High Water (MHHV./). The project, as proposed, would have minimal impacts upon the 
estuary. Mitigations include riparian area enhancement, a potential re-alignment of Ferry Creek 
through the property, and use of "best management practices" during land clearing and construction. 
No potential habitats were found for the marbled murrelet (Brachyramphus marmoratus), snowy 
plover (Charadrius a/exandrinus nivosus), the northern spotted owl (Strix occidenta/is caurina) or 
the candidate species, the Pacific fisher (Martes pennant). No potential nesting habitat for the bald 
eagle (Heliaeetus luecocepha/us) was located on or near the project site. 
Wetlands are present in the western portion of the property, including potential habitat for the 
federally-listed western lily (Lilium occidentale). Recommendations include surveys for red-legged 
frogs (Rana aurora aurora) and western pond turtles (Actinemys marmorafJ,j,S marmoratus) before 
any land clearing or construction. 
2.0 iNTRODUCTION 
Th~ Applicant proposes: ( 1) the annexation of the subject property into the City of Brookings; (2) an 
amendment of the Comprehensive Plan designation of the subject property from Commercial 
!Industrial to Residential; (3) change the zoning of the subject property from Commercial (C-
1)/Industrial (I) to Two-Family Residential (R-2); and (4) amend the Chetco River Estuary 
Shorelands Boundary to be consistent with the l 00-year floodplain boundary. Based on the 
foregoing proposed Two-Family Residential (R-2) zoning designation the maximum development 
potential of the subject property is 59 residential units. There would be no alterations or physical 
changes to the Chetco River estuary from this development. 
Wildlife species potentially located in the general area which are federally-Listed as threatened 
include snowy plover, the northern spotted owl, the Pacific fisher and the marbled murrelet. The bald 
eagle is de--listed but is still protected under the federal Bald and Golden Eagle Act. Listed salmonids 
were also considered for this biological assessment as the project is located on the north bank of the 
Chetco River. 
1 
.~fahar!Tribble B;ologicai Assessment Ga/~a Wildlife Consulting December, 2015 
Exhibit "B" 
P:~ op 1. nf 11'\ 
_) 
) 
OIUtSON 
81?00 KINGS 
r:-.--I -~ 
l \ 
I 
I 
\ 
\ 
.. ·.· 
• 
.... 
I..EGEND 
c:m liMIT 
URBAN GROWTH BOUNOAR'f 
.. 
-: ~-- -· ES'tUAR'y · sao~:LlliDS. ·. B."Q.DNDARY 
--- ESTuARINE BOUNDARY 
NOTE~ When only tli.e Estuary Shore land 
Boundary is shown the two 
boundaries are effectively 
in the identical location 
I Figure 1. Location of Mahar/Tribble property relative to Brookings, Oregon I 
Exhibit "B" 
P::oup 4 n f ~0 
3 
2.1 Statewide Plannmg Goall6. 
Oregon Statewide Planning Goal 16 (Estuarine Resources) provides for the protection of the unique 
environmental, economic, and social values of estuaries and associated wetlands. Goal 16 requires that 
actions that could potentially alter an estuarine ecosystem be subject to the following impact 
assessment: 
1. Unless fully addressed during the development and adoption of comprehensive 
plans, actions which would potentially alter the estuarine ecosystem shall be 
preceded by a clear presentation of the impacts ofthe proposed alteration. Such 
activities include dredging, fill, in-water structures, riprap, log storage, application 
of pesticides and herbicides, water intake or withdrawal and ejjluent discharge, flow-
lane disposal of dredged material, and other activities which could affect the 
estuary's physical processes or biological resources. 
The impact assessment need not be lengthy or complex, but it should enable reviewers 
to gain a clear understanding of the impacts to be expected It shall include 
information orJ: 
a. The type and extent of alterations expected; 
b. The type of resource{s) affected; 
c. The expected extent of impacts ofthe proposed alteration on water quality and 
other physical characteristics of the estuary, living resources, recreation and 
aesthetic use, navigation and other existing and potential uses of the estuary; and 
d The methods which could be employed to avoid or minimize adverse impacts. 
2.2 Environmental Setting 
The project site is located in Curry County, Oregon., and commonly known as Township 40 South, 
Range 13 West, Section 32D, Tax Lots 1500 and 2000 (collectively, "the subject property"). The 
subject property is approximately 13.33 acres in size and is undeveloped. The subject property fronts 
on the North Hank Chetco River Road right-of-way. 
The Chetco River runs along the subject property's entire south boundary line. Immediately west of 
the property a small inlet off the Chetco River can be found, which runs from the river northeast 
towards the subject property. This site is called Snug Harbor, and used to be the historical harbor for 
the city of Brookings. Directly west of the inlet is the Chetco River Resort. 
Ferry Creek traverses the subject property but is located almost entirely within an underground pipe. 
Afler crossing under North Bank Road via a large culve~ Ferry Creek is briefly exposed on the 
property~ surroWlded by alders and Himalayan blackberry bushes, but then continues to the Chetco 
River via the underground pipe. 
The subject property has been heavily impacted from historical commercial/industrial uses resulting 
in a significant degradation of the riparian habitat along the Chetco River. 
Mahar/Tribble Biological A.s.fesament Galea Wildlife Co11Julting December, 2015 
Exhibit "B" 
Pllm' <; nf 1() 
4 
2.3 Physical Environment 
The climate of southern Oregon is characterized as Meditemw.~ with cool, wet winters and warm, 
dry summers with frequent fog. Along the coastline, proximity to the Pacific Ocean produces high 
levels of humidity and results in abundant fog and fog drip precipitation. The maritime influence 
diminishes with distance from the coast, resulting in lesser amounts of fog, drier summer conditions 
and more variable temperatures. Annual precipitation in the project area ranges from 40- 120 inches 
occurring primarily as rain during the winter months. 
2.4 ReguJatory Context 
The project is located within the geographic range of several special- status plant and wildlife 
species. Biological resources on the site may be subject to agency jurisdictions and regulations, as 
described below. 
(a) U.S. Fish and Wildlife Service (USFWS). The USFWS has jurisdiction over species listed as 
threatened or endangered under the federal Endangered Species Act (ESA). The ESA protects listed 
species from "take," broadly defined as to "harass, h~ pursue, hun~ shoot, woun~ kill, trap, 
capture, or collect, or attempt to engage in any such conduct.'' An activity is defined as a "1ake" even 
if wrintentional or accidental. An endangered plant or wildlife species is one that is considered in 
danger of becoming extinct throughout all, or a significant portion of its range. A threatened species 
is one that is likely to become endangered within the foreseeable future. In addition to endangered 
and threatened species, the USFWS bas a list of candidate species, which are those for which the 
USFWS currently has enough information to support a proposal for listing. Section 9 of the ESA and 
its applicable regulations restrict certain activities with respe<.-1 to endangered and threatened 
plants. However, these restrictions are less stringent than those applicable to fish and wildlife 
species. These provisions prohibit the removal of, malicious damage to, or destruction of any listed 
plant species nfrom areas under federal jurisdiction." Listed plants may not be cut, dug up, damaged 
or destroyed, or removed from any other area (including private lands) in knowing violation of a 
State law or regulation. 
(b) Migratory Bird Treaty Ad (MBTA). The :MBTA (16 United States Code [USC] 703) enacts the 
provisions of treaties between the United States, Great Britain, Mexico, Japan, and the Soviet Union 
and authorized the U.S. Secretary of the Interior to protect and regulate the taking of migratory birds. 
The MBT A sets seasons and bag limits for hunted species and protects migratory birds, their occupied 
nests, md their eggs ( 16 USC 703, 50 CFR 21, 50 CFR 1 0). 
(c) The Bald and Golden Eagle Protedion Act (BGEP A). The Bald and Golden Eagle Protection 
Act (16 U.S.C. 668~668c), enacted in 1940 and amended several times since then, prohibits anyone, 
without a permit issued by the Secretary of the Interior, from "taking" bald eagles, or golden eagles 
(as amended). In addition to immediate impacts, this definition also covers impacts that result from 
human-induced alterations initiated aroWld a previously used nest site during a time when eagles are 
not present, if, upon the eagle's return, such alterations agitate or bother an eagle to a degree that 
interferes with or interrupts normal breeding, feeding, or sheltering habits, and causes injury, death 
or nest abandonment. 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December, 2015 
Exhibit "B" 
p~ OP f> of"() 
5 
(c) U.S. Army Corps of Engineers. Under Section 404 of the Clean Water Ac~ the U.S. Army 
Corps of Engineers is responsible for regulating the discharge of fill material into waters of the U.S. 
Waters of the U.S. and their lateral limits are defined in 33 CFR (Code of Federal Regulations) Part 
328.3 (a) and include streams that are tributary to navigable waters and their adjacent wetlands. 
Wetlands that are not adjacent to waters of the U.S. are termed "isolated wetlands" and may be 
subject to U.S. Army Corps of Engineers jurisdiction. 
(d) Oreg.on Department ofFish and Wildlife (ODF&W). The ODF&W has jurisdiction over 
threa1ened or endangered species that are formally listed by the State under the Oregon Endangered 
Species Act (OESA). The OESA is similar to the federal Endangered Species Act both in process 
and substance; it is intended to provide additional protection to threatened and endangered species in 
Oregon. 
The OESA does not supersede the federal Endangered Species Act, but operates in conjunction with 
it. Species may be listed as threatened or endangered under both acts (in which case the provisions of 
both State and federal laws would apply) or under only one act. The Oregon endangered species 
laws prohibit the taking of any plant listed as threatened, endangered, or rare. In Oregon, an activity 
on private lands (such as development) will violate Section 9 of the Endangered Species Act if a 
plant species, listed under both State and federal endangered species laws, is intentionally removed, 
damaged, or destroyed. Under the State Fish and Game Code, the ODF&W also has jurisdiction over 
species that are designated as "fully protected 11 These species are protected against direct impacts. 
3.0 MEmODS 
3.1 Records Search 
A December 2015 IPaC (Information Planning and Conservation Report) report from the USFWS 
was used to provide potential sensitive species information. This report identified the marbled 
murrelet, snowy plover, the northern spotted owl~ the Pacific fisher and the western lily as federally-
listed species potentially occurring in the area. GWC also contributed to the sensitive species 
assessment list based on GWC records and previous work in the area. 
The owner of the Chetco River Resort, Mr. Alan Murray, was contacted for infonnation regarding 
any sensitive species information he may know of, having built and owned the resort for decades. 
A wetland delineation report prepared for the Applicant in 2006 (Wetland Delineation report, John 
Curry Property, Brookings, Curry County, Oregon) was reviewed for biological infonnation 
gathered at that time. 
For the purposes of this report, special-status plant and animal species are defined as those listed in 
the as Threatened or Endangered under the Federal Endangered Species Act, or candidates for 
federal listing. Listed wildlife species potentially occurring within or near the assessment area are 
presented in Table l. 
Mahar/Tribble Biological A.vsessment Galea Wildlife Consulting December, 20 I 5 
Exhibit "8" 
p~ OP 1 nf 1(1 
6 
3.2 Field Reconnaissance and Habitat Assessment 
A field investigation of the project area was conducted in December of2015. Certified Wildlife 
Biologist Frank Galea conducted the field review. Potential wildlife habitats within and around the 
project area were assessed for their potential for federally protected wildlife species. Stands in 
proximity to the project site were assessed for their potential as nesting, denning, resting or forage 
habitats for target species. 
4.0 RESULTS 
4.1 Records Search 
The IPaC report provided a summary of those federally-listed wildlife and plant species with 
potential to occur near the project area. GWC supplemented this list based on our knowledge of the 
area and sensitive species which may occur there. 
4.2 Habitat AnaJysis fol' Federally~ Protected Wildlife 
Table 1 provides the list of sensitive or listed wildlife species potentiaily occurring in the general 
vicinity of the project area based upon the U.S. Fish and Wildlife Service IPAC report and OWC 
records. The listing status of each species and if potential habitat (as determined by GWC, based 
upon a review ofhabi1at available within the project area) was located within or immediately 
adjacent to the project area is also provided in Table 1. 
4.3 Marbled Mu~nlet (Brachyramphus mannoratus) 
The marbled murrelet (MAMU) occurs only in North America, from Alaska south to Santa Cruz, 
California (Nelson 1997). The MAMU is closely associated with old-growth and mature forests for 
nesting and population declines have been attributed in part to loss or modification of forest habitat 
(USFWS 1997). This species is state-listed as endangered in California and threatened in Oregon 
and Washington (Nelson and Sealy 1995). In September 1992, the U.S. Fish and Wildlife Service 
listed MAMU as federally threatened in Washington, Oregon. and Caiifomia (USFWS 1997). 
Unlike most members of the family Alcidae. MAMU most often nest in trees. MAMU prefer to nest 
in old-growth and mature coniferous forests throughout most of their range (Nelson and Sealy 1995, 
Ralph et al. 1995). They also have been found in younger forests with structural elements similar to 
old growth. such as remnant old-growth trees or younger trees with platforms created by deformities 
or dwarf mistletoe infestations (Grenier and Nelson 1995, Nelson and Wilson 2001). 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December, 2015 
Exhibit "B" 
P~wP ~ n f 1() 
7 
Table t ~ Federally-Protected Wildlife Species PotentiaUy Oc~urring near the Pro jed Area 
due to Suitable Habitat Conditions 
(From USFWS & ODF&W lists) 
Common Name Scie·atiftc 
Name 
Marbled murrelet Brachyramphus 
marmoratus 
Northern spotted owl Strix occidentaiis caurlna 
Western snowy plover Charadrius aiexandrinus 
ntvosus 
Pacific Fisher Martes pennanti 
Western Lily Lilium occidentale 
S. OR.IN. CA Coho Oncorhynchus kisutch 
salmon 
Chlnook salmon Oncorhynchus 
tshawytscha 
Coastal cutthroat trout Oncorhynchus clarki 
clarki 
Summer-run steelltead Oncorhynchus rrrykiss 
trout irrideus 
Codes:Federal Status 
FE Federally endangered 
FT Federally threatened 
FC Federal candidate for listing 
NL Not listed Federally 
Mahar/Tribble Biological A.uessrnenl 
OE 
Federal State 
Status Status 
BIRDS 
FT OE 
FT OT 
FT OT 
FC NL 
FE OE 
FISH 
FT NL 
FC NL 
NL NL 
FC NL 
State Status 
Oregon endangered 
Breeding 
Habitat near 
Projed Area? 
No 
No 
No 
No 
Yes 
Yes 
Yes 
Yes 
Yes 
OT Oregon threatened 
Forage 
Habitat near 
Project Area? 
No 
No 
No 
No 
NA 
Yes 
Yes 
Yes 
Yes 
OCE Oregon candidate fur endangered listing 
NL Oregon not listed 
Galea Wildlife Consulting December, 2015 
Exhibit "B" 
P::tor- Q nf 1() 
8 
Potential for Impacts from this Proiect 
MAMU are known to utilize old-growth redwood stands to the south in Californi~ and old-growth fir 
stands in Oregon, for nesting. The project area is located in a rural residential I commercial area 
surrounded by early seral (young growth stage) commercial timberlands with no potential for MAMU 
nesting habitat Due to the lack of suitable nesting habitat for murrelets near the project area it is highly 
unlikely that marbled murrelets would be found in proximity to this project site. This project would 
have no impact on MAMU. Surveys or mitigation for marbled murrelet are not necessary. 
4.4 Northern Spotted Owl (Strix occidentalis caurina) 
The northern spotted owl (NSO) is listed as federally threatened and also listed as threatened by the 
State of Oregon. The NSO is not uncommon over most of its range, which in southern Oregon 
includes late seral corufer forests and mixed-conifer woodlands of the coastal mountains. It occurs 
locally in old growth and mid-seral second-growth forests. 
NSO prefer large diameter trees or snags within well-shaded stands for nest sites, where they will 
use old nests, cavities or shaded, broken-topped trees. While NSOs close association with old growth 
has been documented extensively (Forsman et al. 1984, Gutierrez and Carey 1995, Thomas et al. 
1990), it also nests in mid to late seral forests when stands are highly variable in structure and 
composition (Spies and Franklin 1991 ). They prefer an overhead canopy over nests and roost sites 
for thennal and predator protection and are intolerant to extreme heat, especially for nest sites . NSO 
hunt in relatively dosed canopy forests with open sub-canopies and moderate stem densities. 
Potential for Impacts from this Proiect 
The project site is located in a rural residential/ commercial area. with associated young. 
commercial timberlands. No habitat for NSO is available on or near the project site, and this project 
would have no impacts on NSO. Surveys or mitigations for NSO are therefore not necessary and are 
not recommended. 
4.5 Western snowy plover (Charadrlus alexandrlnus nivosus) 
The snowy plover is listed as federally threatened and State of Oregon threatened. The snowy plover 
is a rare bird along the Oregon coast, nesting on barren sand beaches and occasionally gravel bars 
along large rivers, for nest sites. The Pacific coast population of the western snowy plover breeds 
primarily on coastal beaches from southern Washington to southern Baja California, Mexico. 
Historical records indicate that nesting western snowy plovers were once more widely distributed in 
coastal Califomi~ Oregon, and W asbington. In Oregon, snowy plovers historically nested at 29 
locations on the coast. Currently there are only l 0 nesting locatioJ'I..s, representing a 65 percent decline 
in active breeding areas. Plover numbers have sJigbtly increased in the past few years. 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December, 1015 
Exhibit "B" 
p,. IT(' 1 () tl f 1() 
9 
Potential for Impacts from this Project 
This project is located 1.3 miles from the ocean with no potential habitat in or near the project for this 
species. This proje<:t would have no impact on snowy plovers. Surveys or mitigations for snowy 
plovers are therefore not necessary and are not recommended. 
4.6 Bald eagle (Heliaeetus luecocephalus) 
Although the bald eagle was de-listed from the endangered species list is still protected tmder the 
Bald and Golden Eagle Protection Act and the Migratory Bird Treaty. Management guidelines for 
protection of the bald eagle and nest sites were issued by the U.S. Fish and Wildlife Service in 2007. 
The bald eagle population in southern Oregon has been gradually increasing in size, and greatly re· 
establishing its range. In the past ten years the bald eagle population increased its range and one pair 
has been nesting in the Smith River area, south of the Chetco drainage, for several ye&-s. 
Bald eagles prefer to nest close (within one mile, usually in view) to large, fish-rich waters such as 
lakes and rivers. They typically utilize large conifers to build nests in, which can be standing alone 
or in the midst of a dense timber stand. Bald eagles typically have alternate nest sites located within 
one territory, which are used some years as alternates to the primary nest site. 
Potential for Impacts from this Project 
According to the owner of the resort immediately west of the project, no bald eagles have been 
observed anywhere near the project area. No stands of large conifer are located near the project site 
which would provide preferred nesting habitat This project would have nc impact on bald eagles. No 
additional surveys or mitigations are required for this species. 
4.7 O!Jpi'ef (Pandion haliaetus) 
The osprey was included in this analysis due to the proximity of the harbor and the Chetco River, both 
potential forage areas for osprey. Osprey utilize the same habitats as the bald eagle, feeding exclusively 
on fish. Nests are built on top of or dose to the top of large trees or snags, usually close to feeding 
areas, or at least within sight of feeding areas. 
One osprey nest site is known of in the general area. This is a nest site located on the southeast corner 
of the Chetco River Resort., directly overlooking the Snug Harbor inlet and th.e Chetco River. 
According to Mr. Murray, owner of the reso~ this nest site has been used many years, and osprey 
return to nest at this location every year. 
Potential for Impacts from this Project 
A k.no'Nll. osprey nest is located 1 ,000 feet west of the developed west edge of the property, with dense 
vegetation between the two. This constitutes a sufficient buffer between the nest site a.'1d proposed 
development. No additional surveys or mitigations are required for this species. 
Mahar!Tribbie Biological Asses3men; Galea Wildlife Consulting December 2015 
Exhibit "B" 
P"vP I I of 1() 
10 
4.8 Migratory Bird Treaty Act 
Potential nesting habitat for birds covered by the Migratory Bird Treaty Act occurs within the project 
area. As migratory birds can potentially nest in wetlands, riparian habitats and surrounding trees and 
brush, potential nesting habitat could be impacted during construction and vegetation removal. Nesting 
bird surveys should include any potential nesting of birds belonging to the Ardeidae family, which 
includes herons, egrets, bitterns and their allies. Locally abundant great blue herons and snowy egrets are 
colony nesters, forming large assemblages of nests in one location. It is therefore critical to located any 
heron or egret colony nest sites which may be impa<~ted by the project. 
It i.s recommended that surveys for bird nests should be conducted prior to vegetation removal and 
construction if this is to occur during the migratory bird nesting season, March through August of any 
given year. lf nests are found construction activities should be halted within 300 feet until nestlings 
fledge. 
Potential for lmpacts from this Project 
The pre"iously developed portion of the property contains little nesting habitat for migratory birds. and 
as this is where future development is planned, there would be no significant impact to migratory birds. 
As the Applicant intends to enhance the riparian buffer between the river and future development, nesting 
habitat for migratory birds would actually be improved. Mitigations include nesting bird surveys prior to 
land clearing and construction, plus an enhanced riparian strip along the river. 
4.9 Western pond turtle (Actinemys marmoratus marmoratus) 
The western pond turtle {WPT) is assessed here due to the proximity of the project to the Chetco River. 
Very little is known about the western pond turtle in Curry County, although they have been found in 
the Chetco River system. The western pond turtle inhabits wetlands, coastal1agoons, river, ponds and 
swampy areas subject to seasonal flooding. To the north, a large population can be found in the Rogue 
River_ As their name suggests, these turtles prefer the calm, deep waters offered by ponds and will 
utilize man-made ponds if they have access to them. Large marsh areas are a preferred habitat. 
Female western pond turtles require suitable nesting habitat near their swnmer forage habitats in order 
to lay their eggs. Preferred nesting habitat would be dry, upland sites with reduced canopy closure 
where eggs developing in th.e ground would be warmed by sunlight. 
Western pond turtles also prefer to overwinter in upland habitats. Although they can successfully 
overwinter in mud substrates on the bottom of ponds, some populations use upland sites to overwinter 
under vegetation. This is especially true of WPT populations using large rivers, where they leave the 
.river system once rivers rise and incre~e in flow, and move into dense vegetation above high water 
levels to estivate over winter. 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December 20 !5 
Exhibit "B" 
P ROP 1? "f"O 
ll 
Potential for Impacts from this Proiect 
WPT are known to utilize the upper portions of the Chetco River. Potential habitat for WPT exists in the 
western portion of the property, where a backwater area is found just east of Snug Harbor and the Chetco 
Fiver Resort. However, the owner of the resort reports that he has never seen turtles anywhere near the 
resort or the project area. 
Only the westernmost portion of the property contains preferred WPT habitat. Therefore, construction on 
the previously developed portion of the property would have no impact upon this species. An enhanced 
riparian strip along the river would be beneficial for WPT, as would a restored Ferry Creek. It is 
reconunended that a biologist survey for and move any turtles found from any area where heavy 
machinery is to be used and move them out of harm's way to a non-impacted location. No additional 
mitigations are necessary. 
4.10 Northern Red ... fegged Frog (Rana aurora aulfol'a) 
The northern red-legged frog likely occurs on the west end of this property in wetland habitat. This 
species requires standing water for breeding, but can be found some distance from standing water for 
foraging. Although red-legged frog numbers are greatly diminished in most areas of California and even 
listed as federally-threatened in some localities, this species is relatively abundant in Del Norte County 
to the south and is not a protected species. 
Potential for Impacts from this Proiect 
Habitat for red-legged frogs exists on much of the property, except where paving and hard gravels persist 
and vegetation is limited and scarce. The previously developed area of the property may provide seasonal 
forage habitat during wet years for this species, however nesting habitat is limited to those areas where 
standing water is available all year, which only occurs in the most western portion of the property, near 
Snug Harbor. Therefore, land cleari..ng and construction on the previously developed portion of the 
property would have an insignificant impact upon this species. 
Red-legged frogs should be protected wherever possible from construction. It is recommended that 
a biologist survey for and move any red-legged frogs found from any area where heavy machinery 
is to be used and move them out of harm's way to a non-impacted location. No additional mitigations 
are necessary. 
4.11 Sabnonids 
The project area is located on the north bank of the Chetco River. Coho salmon (Oncorhynchus 
kisutch), Chinook salmon (Oncorhynchus tshawytscha) and Klamath Mountains steelhead trout 
(Oncorhynchus mykiss i"ideus) are all known to occur in the Chetco River. It is likely that Snug 
Harbor, immediately west of the property, provides a backwaterrefugia for juvenile salmonids. 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December 1015 
Exhibit "B" 
P~oP I~ Af ~() 
12 
Potential for Impacts from this Project 
No alterations to salmonid habitats are currently proposed for this property. Any construction, vegetation 
clearing or heavy equipment activity on the property has the potential to increase sediment flows to the 
Chetoo River. The limited amount of current riparian habitat between development and the river is 
insufficient as a buffer to prevent sediment transport. Any activities as described sb.ould be mitigated with 
the best management practices (BMPs) possible, in order to prevent sediment or fuels (leaked oils, diesel 
or gasoline or any other wmatura.l substance) movement to the river. B.MPs can include sediment fences, 
bioswales, fill berms between construction areas and sensitive habitats, fuel mats under stored vehicles 
and construction equipment, use of fuel mats whenever re-filling equipment, etc. An enhanced riparian 
area will eventually mitigate the project by providing an improved buffer to the river from construction 
and other activities. 
4.12 Sensitive Planu 
The western lily grows at the edges of sphagnum bogs and in forest or thicket openings along the margins 
of ephemeral ponds and small channels. It also grows in coastal prairie and scrub near the ocean where 
fog is common. 
Potential habitat for the western lily was found on the west side end of the property, which is undeveloped 
and consists of a mix of upland riparian and wetland habitats. The 2006 wetland delineation by Roberts 
and Associates noted that no western. lily were encountered during their surveys, and mentioned alack of 
wet bog conditions on site, thereby noting a lack of preferred habitat for the species. 
-
Table 2. Federally-listed Plant Species Potentially Occurring near Project Site. 
Common Name Scientific Name Federal State Preferred Habitat Habitat in 
Status Status Project Area? 
Western Lily Lilium occidentale End. End. Bogs, fens , wet gaps in coastal Yes 
conifer forest 
Potential for Impacts from this Project 
The only potential habitat for the western lily is within the western portion of the property, where no 
construction or habitat alteration is planned. Unless construction or habitat alteration is planned beyond 
the area of previous development and impact, no surveys or mitigations for western lily are required. 
4.131Dvasive Plants 
Invasive Himalayan berry (Rubus discolor), English ivy (Hedera helix) Scotch broom ( Cytisus scoparius) 
and other invasive plants occur throughout the property. Wherever possible during vegetation removal 
and construction, invasive plants should be removed by the root. Hedera vines growing up trees should 
be cut, killing the plant above the cut and not allowing flowering and thus seed dissemination, which only 
occurs when the plant flowers along vines off the ground. Removal of invasive plants and the exclusion 
of invasive plants in the future is a positive mitigation for this project. 
Maharffribble Biological A.Jsessment Galea Wildlife Consulting December 20 I 5 
Exhibit "B" 
P~oE> 14 nf 1ll 
13 
4.14 Wetlands 
A wetland delineation report (Wetland Delineation report, John Curry Property, Brookings, Curry 
County, Oregon) was prepared for the Applicant by Roberts and Associates of Harbor, Oregon in 2006. 
This report identified a small (0.12 acre) wetland area on the northwest edge of the property, the west 
edge of which borders the Snug Harbor open water inlet. The report is attached as Appendix A. 
Potential for Impacts from this Project 
Any construction, vegetation clearing or heavy equipment activity on the property has the potential to 
cause sediment flows to wetlands located immediately west of the development site. Any activities as 
described should be mitigated with the best management practices (BMPs) possible, in order to prevent 
sediment or fuels (leaked oils, diesel or gasoline or any other wmatural substance) movement to 
wetland habitats. BMPs can include sediment fences, bioswales, fill berms between construction areas 
and sensitive habitats, fuel mats under stored vehicles and construction equipment, use of fuel mats 
whenever re-filling equipment, etc. Mitigation should include fencing installed between the 
development and wetland habitats to prevent access and thereby degradation to resources. 
4.15 Ferry Creek 
As noted above. Ferry Creek enters this property via a culvert under the North Bank of the Chetco 
River Road~ where it is at first open for approximately 1 00 feet but then enters a pipe which runs the 
flow all the way down to the bank of the Chetco River. It is highly likely, given the status of Ferry 
Creek north of the main road~ that all of the creek channel on the property is artificial. 
The Applicant is amiable to restoring the creek on his property. Options vary, one of which would be to 
remove the conduit the creek is currently in and create a streambed through the midst of the property, 
directly to the Chetco. This would be the shortest route to take and the least expensive scenario. 
Another option would be to create a new streambed leading west from where the creek enters the 
property, along the roadway edge and down to the terminus of the Snug Harbor inlet. This option would 
increase the length of Ferry Creek, would introduce a fresh flow of water into Snug Harbor and 
surrounding wetlands, and allow for maximizing the use of the already-impacted portion of the subject 
property. By re-directing Ferry Creek into Snug Harbor, this would likely increase the siu and depth of 
the inlet and increase the quality and amount of juvenile salmonid rearing habitat for this location along 
the river. Restoring Ferry Creek in this manner would be an excellent mitigation for this project, as it 
would enhance wetland habita1s by increasing the water source into the western portion of the property, 
improve conditions within the Snug Harbor portion of the Chetco River estuary and improve habitat 
conditions for salmonids. amphibians and potentially for the western pond turtle. 
Potential for Impacts from this Project 
As Ferry Creek is already severely impacted, with most of the creek running through pipe underground 
on the property, the project as designed would have no additional impact on the creek. Restoring Ferry 
Creek to a new location, or creating a new streambed where the pipe currently runs, would be an 
excellent mitigation. 
Mahar/Tribble Biological Assessment Galea Wildlife Consulting December 2015 
Exhibit "B" 
P!l op I .:;; nf ~() 
14 
4.16 Riparian Habitats 
The State of Oregon requires riparian buffers of 75 feet. CillTently, a riparian edge of alder, with a 
width of 50-80 feet depending upon location, borders the south edge of the developed edge of the 
property. The west edge of the property is undeveloped and the riparian edge is far less impacted and 
much greater in width. Riparian areas were dominated by red alder (Alnus rubra), willows (Salix 
spp.) and chitum (Rhamnus purshiana) trees, with an understory of salmon berry (Rusbus 
spectabilis), Himalayan blackberry (Rubis discolor) and swordfern (Polystichum munitum). 
Riparian habitats are important habitats for wildlife species as nesting and foraging habitat for birds, 
as migration corridors for terrestrial species, and as refugia for reptiles and amphibians. Riparian 
habitats also act as a visual and sound screen between development and natural resources such as the 
Chetco River estuary. An active, functioning riparian buffer can also act as barriers to sediment 
movement and as sediment and contaminant filters, to prevent sediment flow into river systems. As a 
mitigation the Applicant is proposing to enhance the current riparian area by removing invasive plants., 
such as Himalayan blackberry, as a mitigation for this project. 
5.0 POTENTIAL IMP ACTS OF DEVELOPMENT TO CHETCO RIVER ESTUARY 
The project property has approximately 6.2 acres of previously developed area within which to 
develop the housing project. This excludes the undeveloped portion of the property to the west, and 
the current riparian strip along the river. The proposed project can therefore be built on land which 
was previously commercially impacted, with no need to degrade surrounding natural areas. 
The greatest potential for impacts to the Chetco River estuary or any adjacent wetlands would be from 
the development's sevv11ge and storm water runoff. Although the project is only 1.3 mlles from the 
ocean and thereby this portion of the Chetco River is not likely to be used as spawning habitat for 
salmonids, juvenile salmonids likely frequent the area during low river flow months. Juvenile 
salrnonids, amphibians and aquatic insects can be directly affected by pollutants entering the estuary. 
Every effort should be made not to allow sediments or chemicals to migrate from the project site, 
during construction or after the development is completed. 
The Applicant proposes to use city water and sewer systems, thereby eliminating the need for any on-
site septic disposal system or water wells. A storm water runoff system is being designed by an 
engineer, using the City of Portland Storm Water Manual and the Standard Local Operation 
Procedures for Endangered Species (SLOPES V). Use of the Storm Water Manual and Slope V 
compliance will reduce the potential for adverse impacts on the Chetco estuary resources as water are 
filtered through vegetative filter systems, bioswales and/ or comparable uses prior to entering the 
estuary. A proposed improvement in the riparian strip along the estuary will enhance the Slopes V 
compliance. 
Maharffrihble Biological Assessment Galea Wildlife Consulting December 10/5 
Exhibit "B" 
P;~ OP I t<; nf l(l 
15 
To fue extent allowed, pervious materials should be used for roadways and parking lots within the 
development to reduce the amolUlt ofstormwater runoff toward wetlands or the estuary. Landscaping 
methods should be considered which require the least amount of pesticides or herbicides to maintain 
the grounds. The selection of local plant and tree species should be used wherever possible, as these 
would prove most resistant to disease or insect infestation. 
6.0 
7.0 
RECOML\IENDA TIONS 
1. It is recommended that a biologist survey for and move any red-legged frogs found in areas 
where heavy machinery is to be used. 
2. ft is recommended that a biologist survey for and move any western pond turtles found iu areas 
where heavy machinery is to be used. 
3. ft is recomm.ended that a biologist survey for nesting migratory birds if construction. or 
vegetation removal is to occur during the migratory bird nesting season, March through August 
of any given year. 
4. Hedera vines growing up trees should be cut, killing the plant above the cut and not allowing 
flowering and thus seed dissemination. 
S. Best management practices (BMPs) should be used wherever possible to prevent sediments, 
fuels or contaminants from reaching the Chetco River during any work on the property. 
6. Should Ferry Creek be restored, we recommend that the creek be routed west along the 
northwest property line and connected to the Snug Harbor inlet via a newly created streambed. 
STAFF QUALIFICATIONS 
Tills biological assessment was prepared by Principal Biologist Frank Galea Frank is the 
primary Biological Consultant and owner of Galea Wildlife Consulting, established in 1989. 
Frank is Certified as a Wildlife Biologist through the Wildlife Society. Frank's qualifications 
include a Master of Science Degree in Wildlife Management from Humboldt State University 
and a Bachelor of Science in Zoology from San Diego State University. Frank has been 
assessing habitat and conducting field surveys for Threatened and Endangered spe-cies for over 
26 years. Frank has taken an accredited class on wet1and delineation through the Wetland 
Training Institute, and has successfully completed a Watershed Assessment and Erosion 
Treatment course through the Salmonid Restoration Federation. 
Maharfl'ribhle Biological Assessment Galea Wildlife Consulting December 2015 
Exhibit "B" 
P"ot> 17f'lf1() 
6.0 LITERATURE CITED 
Ehrlic~ P.R., D.S. Dobkins, and D. Wheye. 1988. The Birder's Handbook. Simon and 
Schuster, Fireside Books, New York. 
16 
Forsman, E.D., E.C. Meslow, and H.M. Wright. 1984. Distribution and biology of the spotted owl in 
Oregon. Wildl. Monogr. 87:1-64 
Grenier, J.J., and S.K. Nelson. 1995. Marbled Murrelet habitat associations in Oregon. Pp. 191 ~20 1 in 
Ralph, C.J., G.L. Hunt, Jr., M.G. Raphael, and J.F. Piatt, tech. eds. Ecology and conservation of the 
Marbled Murrelet. USDA Forest Service General Technical Report PSW-GTR-152, Albany, CA. 
Gutierrez, R.J., and A.B. Carey. 1985. Ecology and management of the spotted owl in the Pacific 
Northwest. USDA For. Serv. Gen. Tech. 
Nelson, S.K. 1997. Marbled Murrelet (Brachyramphus marmoratus). In the Birds of North America 
No. 276 (A. Poole and F. Gill, eds.). The Academy of Natural Sciences, Philadelphia, PA. and the 
American Omithologist's Union, Washington, D.C. 
Nelso~ S.K., and S.G. Sealy, eds. 1995. Biology of the marbled murrelet: inland and at sea. NW 
Naturalist 76. 
Nelso~ S.K. and A.K. Wilson. 2001. Marbled Munelet habitat characteristics of state lands in western 
Oregon. Unpublished final report, OR Coop. Fish and Wildlife Research Unit, Oregon State Univ., 
Department of Fisheries and Wildlife, Corvallis, OR 108 pp. 
Ralph, C.J., G.L. Hunt, Jr., M.G. Raphael, and J.F. Piatt, tech. eds. 1995. Ecology and conservation of 
the Marbled Murrelet. USDA Forest Service General Technical Report PSW-GTR-152, Albany, CA. 
Rosenberg:. Kenneth V.; Raphael, Martin G. 1986. Effects of forest fragmentation on vertebrates in 
Douglas-fir forests. In: Verner, Jared; Morrison, Michael L.; Ralp~ C. John, eds. Wildlife 2000: 
modeling habitat relationships of terrestrial vertebrates: Proceedings of an international symposium; 
1984 October 7·11; Fallen Leaf Lake, CA. Madison, WI: The University of Wisconsin Press: 263-
272. [61627] 
Thomas., J. W ., et al. 1990. A conservation strategy for the northern spotted owl. Rep. of the 
Interagency Comm. to Address the Conserv. Strategy of the Northern Spotted Owl. USDA For. Serv., 
Portland, OR. 
Roberson, D. 1980. Rare birds of the West Coast. Woodcock Publications, Pacific Grove, CA. 496 pp. 
U.S. Fish and Wildlife Service. 1997. Recovery plan for the threatened Marbled Murrelet 
(Brachyramphus marmoratus) in Washington, Oregon, and California. USDI, Fish and Wildlife 
Service Region 1, Portland, OR. 
Mahar/Tribble Biological Assessment Galea Wildlife Consultiflg December 2015 
Exhibit "B" 
P~O'P I R nf 1() 
APPENDfX A 
2006 Wetland Delineation Report 
Exhibit "R" 
P~ ()f> 1 Q nf lO 
_.., . 
.. 
WEnAND DELINEATIONREPO.RT 
JOHN CURRY PROPERTY 
SE% OJ SECI'lON 32, T40S, R13W 
lJROOKINGS. CURRY COUNTY, OREGON 
Prepared fMt Jolla & PatrieJa Ca.r.Qr 
P.O. Rca 5030 
Br.oJddp. Orepo J7.15 
Prtpaftd by: WUbur E. & M.atdaew 1. Tmayik 
t .O.Bu1190 
J'Jwenee, Olqou 91439 
526 
Exhibit "8" 
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1.0 INDODUCTION 
TlDs wcOuld dellnoatbn report .i>r the Cm:ry property wu colldtWd 8Dd prepared by 
WDbur B. Tam;yik aDd Mattb8w J. Temyjk at 1be ~ of John. Cua7 ~ ofthe 
pl'O]Jerty. Tbe purpose ofta inwstigation wu to delineate ud 1111p wetJaod bo'IJ'Odmins 
of all.Juriscflc&nal wotlaods withit tbo iXnffled 12.33 acte Study .Area. Using u 
auidm::e iJr this report Wllibe US Army Co~ o!BDgioeen (COB) U87 Wetland 
DeftneatJon MaD•al and now additional auppJcmants ftom COB aa4 Ore&on Department 
ofLands (DSL). This infi>anatian will be lbled it the plmning aDd iinplamamng of 
pJannipg and conatructianJbttire ~at tho site dm:ing the fnwnMiatc tbturo. 
ZaO 8JTELOCAUQN 
Aa illustratz:d on tba site ~Map tbo site fa located on tho North Bank of tho Cbctco 
Rivm' Estuary about 1 mf!e eut of Highway 101. In Order to :readl the property coming 
.frotn th8 north on Hlghway 101 ]IOU tum ld just befuro the Clctco Bridge. Tbco tum 
rl&bt 01$> the North Bank-OJetro River Road. The sito is easiJ;y itentified as a imner 
~ tNck yard. mostly cbmi and ooverccl with grawL The Study Area lepl 
descr.fptionis as 1bllows; SB% ofSectioJl32, T40S, R13W, W.M Coay Couoty, On:gon. 
Loogitndo oQO 03"'57", Latituckll24° lS'SS". 
2.1 WfiORIC JNlOIMATION 
I 
I ~ John Cmry WdJIRd Delfnestim Report 
527 
Exhibit "B" 
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Gravel business operation. This started 20 )'ear'S ago and there aro indications that it was 
initially cleared at that time. The extreme west portion which is mt a part of~~ 
Study Area was receotly logged with an Oregon Department of Forestry Permit. Logging 
access through 1hc property was approved during this operation. 
Early contacts by Mr. Cuny irdicated a possible wetland violation iBsue by DSL in the 
extreme northwest QOmtr of1be cumm Study At=. After eonsultiog with Bob Lobddl 
w.o examined the subject area of the complaint aDd determined that while some vegetation 
bad been cleared tbarc was not sufticlent disturbsnco to wrifY 80.'/ regulatory fiB or 
3.0 SITE CONDl'lJON8 
The entire Study Area aito bordering the Chetco RMt on the SOlJtb and North Bank R1wr 
Road on 1Jio north is a tutally disturbed • with historle fill. on the oaat balf41Dd ~ 
cleared laud to the west. .o~ sma11 patch o1 standing. Akl~.ttees a ~ .P«n benches 
js located at tho west cod next to the inner tidal cbanncl hcent permitted lo~g 
zemoved a. substantial numbet of these ma~ Alder;~ and created a cleaced logging access 
road. No wetlands within the Study Area appeared to be dtstmbed. A narrow laod of 
upland/wetland vegetation exists next to tbo Chetco Riwr. AD vegetation within this area 
protected by a regulated 35 mot riparian setb&ckftom tht edp of the river OHWL. 
528 
Exhibit "B" 
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Duo to past hiBtoric oollBlll:lcial ao most ofihe lito has been aleared. 1'bD cut baJf slopes 
towards the riwr. The west aWf.e slopes gently no tho .oorthM.m wetland area and the 
south..-pot1km io tile riwr. HOM nfssri&atm is First The west portion is acwrai ilct 
.Iowa' than tho cut industrial area mJ as )let .fa unfilled. 
3,2 BQUj 
Sofls as mapped by US ~of Agrlc~ Natuml Rcsoorce Conservation 
ScrvJce {NllCS) 1987 ia u fbllowa. 
15A Bagnea.tl!tnriw wmplp; 0 to 3% &lopes {Map Unit lSA) 
Bagnesa ai1t loam, wdl draiocds as ~pPed mr eotke n. 2000 aad 
sollfiiwest to southaast pcntJon ofTI.. 1500 within tbo Study Area. 
274D WJa$'msk lit Jpem 3 to 15% slopes (Map Unit 274D) as mapped 
fur the northwest to the oortheast portim ofTL 1500 within tho study 
area. 
I>urh1g our 1iekt inwstigadons ~ aoil bJb1ors. hydrophyt:ic vegetation and presence 
afllydrology 'ftl'O U&eCl to satis1Y wutlaDd mamal adlmia. 
3,3 IIXDRQLOGY 
The main 110t1rco ofhydro1o8fto 1bD ale is lJOUOillll.IUdDilon site widr. some rem ofi"Ji:om 
the North Bank River RDad. Some w.intet riwr flooding in tho west cad low areas. 
529 
Exhibit "B" 
Pj:lcrp ?1 nf ~0 
3.4 VEGETATION C Dominaqt species ouly) 
Vegetation at this site within 1he Study Area will bo 1istad in three distfDct areas below. 
Area (1) Wat Lower Portion 
Sci-Name Common Name Plant Indicator S1atus 
Aklusrubra Red alder PAC 
Cfndam ti1'YCll8C Tbist1c creepilg PACU+ 
Hquisetum teJmatcia Horsetail giaot FACW 
Polystichum.lDlllitum Plnrsland sword .ilm FACU 
Rubus discolor .Hima1a:yan bJackbeay FACU 
~bus laciniams CUt-JcmbJarkbc:ny FACU+ 
Rubus spectahilis SalmoJl~ PAC 
Symphodcaipos moDis SDowbcny CR!Cping NOL 
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Ana(Z) Eut Upland IndUitrial Ana 
Sci-Name Common Name Plaot IDdicator Status 
A.lnusRuln Red alder FAC 
Ai:t:r macropkylhun M'apJe big leaf FACU 
Equisetmn armwe Horsetailiidd PAC 
Polysticlrum .IDllDitum PioeJaDd sword 1bm FACU 
Pteridium aq~ Brackm:fin FACU 
~discob BimaJayan bkckbeay FACU 
Rubus arshms ~~ FACU 
Rammculus repms ~-cup c:reeping FACW 
8aJ,nbuws racemosa European red e1det FACU 
Trifu1h.tm repeas Wbiteckmr FACU+ 
530 
Exhibit "B" 
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Sci-Name 
Apoada ca.ppillais 
~mtix-~ 
qa.olaJpta 
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c,pc.m ltrlpus 
1uDcus aftbsus 
Rammcuhis n:pcm 
Common Narno Plant Indicator Statns 
Cokm!W beotgtasa PAC 
r...dy&;m PAC 
SJouah sedge OBL 
Big-beal&edp OBL 
~~Jor FACW 
-
Rusb.IDfl FACW 
Butter. cup ueepiDg FACw 
It sbouki be noted that tho emiro Stacly An:a 11 a disturbed aite; mafoly due to historical 
hfuatdal1130 Plata-a Oregon .Dep&ttmem ofPolatry logiDe perm opcmtions. 
3.5 RARE OR EN»ANGIDD SPEPJB 
Based on~ HerJta&e tmb:rmation onDCarby siCa we did not o~ my oftbc rare 
pJant.s species .listed fur this portion of Curry Couaty. Special atfenlioo w.s giwn to 
aeateh mr the listed IJiiom occidentalo (Western boa lilf)u-have eaicounta:ed this 
plant homo in Ciao Brookings area. The ~~pedes fl DOt prei!itDt on the a mainly due to 
lack of wet bog conditions. ~River sad Bsmary does hlno OtqJon/CaJifumia COho 
Salmon (Oncothynclms ldsutch), a listed Tbreateo:d Species (OOP& W Gold Beach office 
coiD.ct). .&quired dparlan veptatfon setbacks of75-fbet wm protect the river 'beuks.. 
Future project Stol'J.1l\\'8lel' ~Plans win meet aD fedeta4 state, and Jocai ~ 
.requirement~ fi)r l'1IIJDff water into the estumy. 
531 
Exhibit "B" 
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3.6 CULTURAL Bpo!lRQ!'j 
Wo haw con1acted thD Siletz Indian Tdbll H1stor1en about tho 1ocation of1ho Study Area. 
He expressed DO doonmentod prior NafNe American IJldim US$. &~ cf:ao to tho 
disturbed condJdom at tbo lfco bistodo evidence 1JB1 J.vo beaD. lost. Sholl)l lillY artifitcts 
01 cvldeoce be fuuoo dmjng future dqveJqmmnt ~ actiyftiel wo:k will cease 
gOO tbe trJbo Mtffisl 
4,0 WET!·AND Dit1 .JNTMTION ME'l'HODS USED 
The mire &Jd fnvmtiptKms 81Kl report preparation wa ~to requin:d i»mm 
contain:d In tho Corps ofRnglneen Wedmd Deltneadon M:tunlql pubHsted in 1981. 
W"lfh added !!tfention to ftiCOOtJy 1asood Wetland Delhutatioa Rlp9ri GmdeiiDes 
developed jomtly by the Partland DJstrict O:>rps of Bnginecrs eod US BnviroJ medal 
Prot=im Aga:my, RePm 10~ and also In b wkh leceut OregonDepmtmexX ofStato 
LaDds Admlnil!'trative Rules guide1incs. 
Soill we.re inspeetecl fur ev.ideDce ofll.yddc son ibdicators in the iiald byuo of& Munsel 
Son Omrt& Soil moisture conteZJt.. maCrix color ad t11e presence of mottles aod gJcy.iDg 
~ recorded on data sbecrt.s 1bt each ObservaD:m test pjt 
'11Kt delir:lJ:ation of the upl81lda and wetlands of this aito and .resulting~ mapa was 
mi:Ycc1 at by uao of field notc:s, coJon:d pboros, mf by uso of published IOUI'Ce& 
532 
Exhibit "B" 
Pj:!crp Jf'\ nf 10 
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plant cammnnity, toil sampBog to ~ hJdr.ic soils aud hydrology gatb&ed and 
ICC01'dcd during IR vilb. Tho wet1and. boundary on site fs cktady .IIIll1'bd by orange 
Wetland Boundary11aa_ging tape. Test poD& uplaad.aad wetland locatiGnsaro ~ 
on site by numbered ~ flae:ging tape. Plain blue flagging tapo aJao used to JdemitY on 
alto boundaries ofWaters of fix, US and Oregon. Wobbe & A.s8ocimls dkt tbe ~ 
dolinoationmap ~ 
the bottom of~North Bank River Road atccp embtmkrrcm. 'l".lz ~ 
Cle:!sification is P.BM: and HOM ClasslficattonJs Fl&t/deprcsaional. 1'be DydroJogy is 
6.0 CONCLUSIONS & RECQMMJiNJ)4llONS 
We consulted with Bob Lobdell by pbotJ.O sovenl times during this sii8 :investigation that 
was lntemJpted .~ times doe to WJ{ous cireumsta~ inrlnding Ahms rubra logging 
533 
Exhibit "B" 
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In order to a wid problems with Cmty CouDt;ta 75-fuot rlparfan ~set back b 
odgimlJ study area wu reduced; leaving 1bo o:xtremc west tmall penioJuJa between the 
main Cbetco River and tbeioteriot ~channel out of1be Study Area. 
Corrcnt conditions at tbe site verifY that 1hD YOgeC&tion cleared cea has DOW 8lUy 
teco'YI:Ited. U'this amaiJ.jur:isdictio.nal wotJml is to bo ~by fill or l'tJII)V8]; then a 
joint COWDSL Section 404 Permit is ~· C..O should bo 1lken. to preeerve the 
Cbetco River riparian vegetatJon --
7.0 CQNSULTHfl' D'RC'.AfMER 
We~ tm services perfurmcd 1bt tl1Js study sito investiptton wt1re coMucted wfth 
tho .iMsl. of care aod atilt ordiaat ily CIX.Oit}ised ill our area Of axpcd:& ThD data. p:C8Cntcd 
Jn tb1s .report Ja ~to be~ of conditions at the site. Tho conclnsions are 
pro:mss1onal opinfona fn aceontancc with ecweut stDDdards of praiessional pmcticc aod no 
7.1 DSL.CQNCJJBRENCI DECJSION S'fATilMJ!!NT 
This report doCuments the imest:1gatio.n, beat pro:&ssionaljudgment and ClOJlOlosioxls of the 
investigators. It should be considc:md a Pre1fminary J~onal DetmniDstion and mg1 
at mm OWJ1 d8k until it has been reviewed ami appro~ in wrltiDg by the~ 
534 
Exhibit "B" 
P:.:.<'rl" ?R nf 10 
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Deps.rtnxmt ofState Lands inaccordancewffh OAR 141~09()..0005 through 141..()9().. 
0055. Delineation reports essoeiated with app~ !liD gNta. first priority 1br n:Mew. 
Be advised that review ofwetland reports without an associated permit may tab mouths 
535 
Exhibit "B" 
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REFERENCES: 
Envfrorwnentaf Uixxatory, 1987, CotpB « Et>gineet8 W8tltn1s Delneallon Alsrtu8J, T echrUcal 
Reprt & 874 1, U.S. twYi Corps ct Engblaets W$tWfrtS Experinent Stalon, ~. MS 
Federallnteragericy CormilBe t.r We&nS Delneailn, 1989, Federal U8nusl fot ldentlyfng and 
DeiJeslilg JurlsdidJonsl WetiJnq8J U.S. /vmy Corps of Engloeera) U.S. Envfronmenbi Plotsclb'\ 
NJerc1, U.S. Ash & Wldlife SeM:e, 11\d U.S.O.A Sol ConseMfion SeMce, Westingt)n, D.C. 
Coopere6ve technical publicabt 238pp. 
Kallmorgan Corporatbn, 1994 Edafon, Mun88l SOl CdorOhtutB. Macbeil DlviskHl (II<Dimorgan 
lnsfruments Corpo,._,, Newbwgh, NY 
Reed, P .B. 1008 Nallonsl List. of Pfan! Spsc/e8 fha'Occu';, W&tlands: Nort1west (Region 9), U.S. 
FISh and Wldlfe SeMce, B100gfcal Repai ee (26.9) ae pp . 
U.S. Depanmentof Agriculture (USDA), Nsbn Resources COneervatloo SeMce (NRCS) Soil 
SUtv&yofCurry ColKlty Al88, ~ (1970), Washlngtll D.C . 
vs DepMrnentot 1t1e rrneoor, Fish and WUif& SeNte N8/lonsl W9tlatJd 1nwntxy Map at 
8roolciJqJ 
Oregon NaUonal Heritage lnformafk>n Cemer, Porkd, Oregon (list of ESA no6ed wlhin the 
vicinity of lhe sUs) 
Exhibit ''B" 
P1:1 OP ~() nf 1() 
536 
Ponor Engineenng LLC 
Donald Porior 
Engineenng and Land Survey1ng 
Dan O'Connor 
Huycke O'Connor Jarvis, LLP 
823 Alder Creek Drive 
Medford, OR 97504 
Phone. ~ l l ' ; :.. I ) ~ ;' 
Fax: 541-772-3443 
Mr. O'Connor 
Tribble Property in Brookmgs 
69262 Wildwood Road 
North Bend, Orexon. 97459 
Phooelf3X: S.o4l -7S&-6H7. S41·290·l69J 
'I'IUs Jetter responds to our proposed Storm Water design for the TnDble Property Development in 
Brookings. Tbe final approved plans will be developed using the City of Portland Storm water Manual and 
the Standanl Local Ooeration Procedures for Endan~~ Soecies CSLOPES V) as recommended bv Chuck 
Wla:Jc:~. » F~n~ .Bw1U8J:.l wurk.wg fur i1M: On:guu ~ Br.wW NOAA F.lbhc:IJC::. Wt':t.l ~t .Rq;Juu. 
We concur with Mr. Wheeler that tbe use of the Stonn Watt:r Manual and Slope V compliance will reduce 
the potentia) for adverwe impacts on the Chctco estuary resoun:es as water are filte~Uilhrough vegetative 
filter systems or compamble prior to entering the esnwy_ 
Donald .Porior. PE 
Cc: Ron Tnbble, Owner 
~e loft 
Exhibit "C" 
P::~rJC' I n f' 1