403 SE Caruthers St.

#101
Portland, OR 97214
503.223.6418

April 24, 2020

Via Electronic Mail melinda.butterfield@state.or.us

Melinda Butterfield, DSL Coordinator - WWC Comments
Oregon Department of State Lands 775 Summer Street,
NE, Suite 100 Salem, Oregon 97301-1279

Re: Willamette Riverkeeper et al. Comments on Proposed McCall Oil

Joint Permit Application for Access Dredging and Removal Fill in the Willamette
River (Portland Harbor Super Fund Site) (DSL # 62314 Revised)

Dear Oregon Department of State Lands:

Willamette Riverkeeper, Portland Harbor Community Coalition, Portland Audubon, the

Human Access Project, Neighbors for Clean Air, Columbia Riverkeeper, Oregon Physicians for
Social Responsibility, Center for Sustainable Economy, and the Northwest Environmental Defense
Center (the “Commenters”) submit herewith initial comments to the Oregon Department of State
Lands on the McCall Oil and Chemical Corporation’s application for access dredging and removal
fill project (DSL # 62314 Revised). Commenters have direct and personal interests in the
proceeding, including clean water, safety, and to a livable environment, and these interests would be
directly and adversely impacted by project approval. The Commenters have significant concerns
about the environmental impacts of the project and whether a DSL permit is even appropriate.
There has been, and remains, a high level of public interest in this project. Because of the lack of
public disclosure of information and because McCall has not demonstrated it satisfies the ORS
196.825 and OAR 141 Division 41 factors, DSL must deny the application.

Public Notice of Project Is Inadequate for Substantive Public Comment,

and Issuance of a DSL Permit Would Be Unlawful.

OAR 141-085-0560 allows for public notice and comment of removal fill applications to
DSL. In late 2019, Willamette Riverkeeper joined other nonprofit groups, including several
Commenters on this letter, in submitting comments opposing McCall Oil’s application to DEQ for
401 certification, and to the Corps for a 10 year “maintenance” dredging project permit. These
comments and the supporting materials are submitted herewith and incorporated by reference. 1 On
March 31, 2020 the Corps informed the groups that it declined their request for a public hearing. On
April 13, 2020, the Commenters found out from the Corps that a Final EA has been prepared on
the project. The Corps refused to release the Final EA to Willamette Riverkeeper without a formal
FOIA request. Willamette Riverkeeper submitted a FOIA on April 14, 2020 but the Corps has not
released the requested records and does not anticipate releasing them until at least May 12, 2020.

1 Due to the electronic file size, the files are provided in weblinks in the attached Index and will be emailed to DSL.
The Commenters also requested an extension on the public comment deadline to DSL so that they
would have time to receive, and review, the Final EA records currently in the Corps’ possession.
DSL denied our request for a comment period extension. Thus the Commenters are forced to
submit these initial comments to DSL on the proposed action without the benefit of records, or the
public discourse, that the public is entitled to have. The Commenters intend to supplement these
comments, and their comments to the Corps, upon receipt of the requested information. It is
McCall’s burden to provide the DSL with the information necessary to make a determination. OAR
196-085-0565(5). The applicant is required to provide DSL with “all the underlying information” to
support DSL’s consideration of the OAR 141-085-0565 criteria. OAR 141-085-0550(5)(o); OAR
141-085-0565(5). Without this information, DSL cannot consider the requisite factors. See Citizens for
Responsible Development in the Dalles v. Wal-Mart Stores, Inc. and Department of State Lands, 366 Or. 272,
284-85 (April 16, 2020) (en banc). What is clear, however, is that with the information available to
date, McCall has not provided sufficient information for DSL to consider ORS 196.825 and OAR
141 Division 85 criteria, and individual and cumulative impacts including secondary impacts.

We previously stated that if McCall wants to proceed with this project, it should reapply to
the Corps for an individual permit and provide far more explanation for how it proposes to protect
the Willamette and Columbia Rivers, all of which must be subject to public notice and comment.
We only recently found out about McCall’s switch to an individual permit application, and that an
EA has been drafted and finalized, however we have not been privy to any of these records. 2
Without the necessary information released to the public to address the points we originally made,
and to comment on, we are at a disadvantage that runs contrary to public notice and comment laws.
We hereby reserve our rights to provide supplemental comments.

The Purpose and Need of McCall’s Project is Not Disclosed or Available for DSL Analysis

Despite these governmental blockages to public information and public participation, and
despite the simultaneous ongoing massive shutdown of our nation for public health and safety
protections against the spread of Covid-19, this project continues forward. McCall has not sought to
conduct any “maintenance” dredging in over 20 years, yet suddenly this project marches onwards.
Relatedly, the Zenith Energy Management (“Zenith”) oil terminal has also recently ramped up its
expansion efforts. As we pointed out in our November 2019 comments and attachments to the
Corps and DEQ, which are enclosed and incorporated by reference herewith, the “maintenance”
dredging project proposed by McCall Oil is exceptionally conveniently for Zenith, working out to be
right where Zenith’s proposed pipelines would end. See Nov. 27, 2019 Comments to the Corps and
Attachment 3. But the story continues with even clearer linkages to other effects of the project that
DSL cannot ignore, and is obligated to evaluate under OAR 141-058-0565(3).

McCall’s project must have a defined purpose and be based on documented need or needs.
OAR 141-085-0550(4)(g); ORS 196.825(2)(a). DSL must review the primary development “or
intended use to be accomplished” (OAR 141-085-0020(169)) of a project. The record clearly shows that

2 As we pointed out the Corps in our comments six months ago, several deficiencies existed with respect to McCall’s
application. We understand that McCall has since altered its application from a General Permit to an application for an
Individual Permit. The application is still, however, at least in part still based on a 1993 nationwide permit that appears
to have not been updated in the intervening 26 years. See NWP-1993-134-3. Additionally, the permit McCall is using in
support of its Application is actually the wrong permit; it should not be using NWP-1993-134-3 but -35. See DEQ
Comments Attachment 1 at 3.

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McCall’s stated need for “maintenance” dredging may not, in fact, match why it is seeking a dredge
fill permit now. The project purpose must be defined, the activity must accomplish the documented
purpose; and the purpose specific enough for DSL to determine whether McCall has considered a
reasonable range of alternatives. OAR 141-085-0550(5)(f). Under DSL regulations, the project must
have “independent utility.” OAR 141-085-0565(3)(a). There is substantial doubt as to whether
McCall would be the primary beneficiary from the proposed project. DSL should question the full
scope of McCall’s plan. As part of the individual permit application review, DSL must require
additional information and disclosures regarding the purpose and need of the McCall project, which
directly correlates with the degree of adverse impacts, public interest, and other factors that increase
the complexity of the project. OAR 141-085-0550(4). Furthermore, the Corps, reviewing the same
application, must evaluate the project for cumulative and secondary impacts (40 C.F.R. § 230.6(c),
230.11(g)). If McCall’s purpose and need does not disclose and discuss the connections raised by the
Commenters, yet there is information documenting this issue, DSL must deny the application.

For example, just this week, Zenith has submitted several new applications to the City of
Portland to add an expansion of pipes, pumps, and new railcar to its tank farm on Northwest Front
Avenue.3 Zenith’s proposal picks up where McCall’s Fall 2019 permit application to the Corps and
DSL leaves off, and includes a Greenway Application for pipes on McCall’s property. As DSL can
see from some of the records in Zenith’s application to the City of Portland (below), and comparing
them with the records in DSL’s own records, Zenith’s proposed pipes now go directly through the
middle of McCall Oil’s facility and to “ship loading / off loading” at McCall’s docks, exactly where
McCall proposes to DSL it is only dredging for “maintenance” dredging. Yet again, we emphasize
that the characterization of the purpose of McCall’s project of purely maintenance dredging, as
proposed to DSL, does not comport with reality and DSL must acknowledge this void in McCall’s
application. Now, even Zenith is confirming this connection, and DSL must reject McCall’s
application.

3See, e.g., Zane Sparling, “Zenith Energy seeks permit for $24M expansion in Portland.” Portland Tribune (Apr. 22,
2020) https://pamplinmedia com/pt/9-news/463664-375906-zenith-energy-seeks-permit-for-24m-expansion-in-
portland?fbclid=IwAR0Ka6D14dBVMPstnuC-QQbpw1ibtCB4wQJciBkNMwzZgC5-wrkBL0NDr98

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 Figure 2. Zenith proposal to City of Portland (Apr. 22, 2020)

The project site clearly is an intersection of McCall’s facility and Zenith’s pipelines. Thus the
geographic area for DSL’s analysis of the application must identify and analyze Zenith’s pipelines,
the effects of these pipelines, and increased navigation stemming from the products channeled
through the pipe system. DSL must consider the secondary and cumulative effects of McCall’s
proposal. Here, as Figure 1 and Figure 2 demonstrate, the “project” and “project site” clearly
include the dredging area and the Zenith pipelines’ terminus. It is impossible for DSL to deny that at
a minimum there is a strong and serious suggestion that the purpose McCall’s project is this
connection, and that this issue must be identified and analyzed in DSL’s review. Cf. Coos Waterkeeper
v. Port of Coos Bay, 284 Or. App. 620 (2017), 363 Or. 354 (2018). And, the “project area” means “the
physical space in which the removal-fill takes place including any on site or off-site mitigation site”
which encompasses “the entire area of ground disturbance, even though not within waters of the
state, including all staging areas and access ways, both temporary and permanent.” OAR 141-085-
0010(170). DSL’s consideration of “reasonably expected adverse effects” and “adverse impacts”
“means the direct or indirect, reasonably expected or predictable results of project development

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upon waters of this state including water resources, navigation, fishing and public recreation uses.”
OAR 141-085-0510(86). Because of the purpose of McCall’s project, DSL cannot approve the
permit unless McCall provides information to allow DSL to examine the reasonably expected
adverse effects and adverse impacts of the project.

The proposed work, as presented and without further information, is contrary to the public
interest and we urge DSL to deny the work to the extent it (1) requires further information to be
gathered and disclosed to the public, and (2) directly or indirectly supports, facilitates, or is linked, to
any development or operation by Zenith oil terminal. McCall must seek a certification from DSL for
any removal or fill activities within the waters of the United States and comply with removal fill law
requirements. ORS 196.795-.990. For DSL to review of McCall’s application, more information is
required. DSL must have complete and accurate information before it for reviewing individual
permits. OAR 141-085-0550(2). At a minimum, the information relating to the Zenith connection
suggests that DSL should request additional information on this topic to make an informed decision.
OAR 141-085-0550(7).

The last time McCall dredged in this area was in 1997. See Nov. 27, 2019 Comment Letter
Attachment 2. If DSL were to consider McCall’s stated need for dredging for the first time in more
than 20 years without evaluating it in conjunction with Zenith’s contemporaneous expansion, DSL
would miss the boat. McCall’s application also ignores the effects of increased ship traffic its
dredged berth would open the area up to, and of the unspecified and unquantified products that will
be transported through the dredge and fill area. These effects go beyond McCall’s simple proposal
of maintenance dredging to facilitate access to its old berth, and DSL must independently consider
them. DSL is obligated to conduct its own investigation (OAR 141-085-0565(1)), which in light of
the information, demonstrates McCall’s proposal does not satisfy the OAR 141-085-0565 criteria.

Additionally, the application refers to large volumes of commercial vessel traffic “outside” of
the project site, but does not acknowledge any existing baseline, or change in the vessel traffic, that
the dredging project may facilitate once completed. As regular users of the Willamette River,
increased navigation and unspecified products being transported concerns the Commenters. McCall
repeatedly says it will use the pier for asphalt and “other products” but without specification of
those “other” products other than “bulk fuel.” Additionally, without information on navigation
changes, DSL’s review of McCall’s application, the environmental effects, valuations, alternatives,
and mitigation is incomplete. DSL cannot evaluate whether the project is consistent with the ORS
196.825(1) criteria, or the Corps with 40 C.F.R. § 230.6(c) and 230.11 criteria, without this
information.

DSL Removal Fill Program and Application Criteria Are Not Satisfied

The purpose of Oregon’s removal-fill permit law, ORS 196.795-196.990, is to ensure

protection and the best use of Oregon’s water resources for home, commercial, wildlife habitat,
public navigation, fishing, and recreational uses. Our state’s policy is codified at ORS 196.805(1)
(noting that “[t]he protection, conservation and best use of the water resources of this state are
matters of the utmost public concern.”). Any ORS 196.815 permit must (a) [be] consistent with the
protection, conservation and best use of the water resources of this state as specified in ORS
196.600 to 196.905; and (b) would not unreasonably interfere with the paramount policy of this state
to preserve the use of its waters for navigation, fishing and public recreation. ORS 196.825(1).
Additionally, regulations requires independent utility of a project. See OAR 141-085-0565(3).

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 The project would likely do immense damage to water quality in Oregon, and it is not
consistent with the protection, conservation and best use of the water resources of this state. The
proposed project will likely impair designated beneficial uses and fish habitat. Because McCall has
not demonstrated that the state’s waters’ will be protected, especially if the project results in the
expansion of ship traffic and transport of unspecific products and quantities of products through
Zenith’s proposed pipelines, DSL must deny the permit because the project is not consistent with
the protection and conservation of Oregon’s waters under ORS 196.825(1)(a).

Further, in determining whether to issue a permit, DSL must consider ORS 196.825(3):

a. public need for and the social, economic, or other public benefits likely benefits from
the proposed fill or removal;
b. economic cost to the public if the removal or fill is not accomplished;
c. availability of alternatives to the proposed project;
d. availability of alternative sites for the proposed project;
e. whether proposed activity conforms to sound policies of conservation and would not
interfere with public health and safety;
f. whether the proposed fill or removal is in conformance with existing public uses of
waters and with uses designated for adjacent land in an acknowledged comprehensive
plan and land-use regulations;
g. whether the proposed fill or removal is compatible with the acknowledged
comprehensive plan and land use regulations for the area where the proposed fill or
removal is to take place or can be conditioned on a future local approval to meet this
criterion;
h. whether the proposed fill or removal is for stream bank protection; and
i. whether the applicant has provided all practical mitigation to reduce the adverse effects
of the proposed fill or removal in the manner set forth in ORS 196.800…

DSL must conduct a weighing of the public benefits of the project against interference with
factors including navigation, fishing, and public recreation. See Citizens for Resp. Devel. In the Dalles v.
Walmart, 295 Or App 310 (2018). As part of this weighing of benefits, the legislature has clearly
demonstrated that it is the State’s “paramount policy” to preserve Oregon waters for navigation,
fishing, and public recreation. ORS 196.825(1). McCall has failed to demonstrate that the project will
not unreasonably interfere with navigation, fishing, and public recreation – especially as it relates to
Zenith’s proposed pipeline expansions - and, therefore, DSL must deny the permit. ORS
196.825(1)(b).

With the purpose and need clearly disclosed, and not couched in terms of simply McCall’s
“maintenance”, when applying the removal-fill permit factors (some of which are raised below),
(ORS 196.825(3) and OAR 141-085-0565(4)), and considering the indirect and cumulative effects,
DSL must deny the application.

Notably, the McCall dredge fill project does not serve a public need or cost the public any
economic detriment if it is not accomplished, and is thus unreasonable. The project relates only to
McCall’s private business opportunities, and by extension, Zenith’s, both of which are irrelevant.
McCall does not describe how its proposal satisfies anything more than its own private business
interests, thus there is no public need for the project. OAR 141-085-0550(4)(g) (requiring

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documentation of needs). Moreover, as DSL is acutely aware, the public’s interest in curbing the
expansion of fossil fuel export expansion is, to say the least, a hotly contested issue for the City of
Portland and the State of Oregon. This knowledge alone raises substantial questions of the public
need that justify further disclosures from McCall. In fact, this is also explicitly a statewide priority
and thus public need to prevent against climate change impacts. Governor Brown’s Executive Order
plainly prioritizes the State’s public interest in protecting public health, Oregon’s economic vitality,
natural resources, and environment against climate change. See Exec. Order 20-04. The McCall
project, if allowed to proceed, will unreasonably interfere with the policies of the State and
Oregonians. The DSL cannot find there is a predominate public need for the project because the
project is unnecessary and there is no evidence of demand for it, and the public need identified by
the applicants is outweighed by the loss to Oregon’s waters. DSL has a responsibility to protect the
public interest and should not frame the public need question in a way that avoids that responsibility
to find a predominate public need for the project as a whole in light of all the relevant impacts.

Furthermore, McCall presents the project as a “temporary” 5 year dredging project to DSL
(and a 10 year project to the Corps), with temporary effects on benthic communities and in
salmonid habitat during dredging and that these communities would recover within weeks or
months of dredging. Yet, the related activity, Zenith exports, establishes a much longer-term effect
with likely increased vessel traffic, transport of unspecified products in unspecified quantities from
Zenith’s proposed pipelines, and broader implications for the industrialized area, the City of
Portland, the State of Oregon, and fossil fuel extraction industries nationally. Again, this is
information DSL must consider. McCall has failed to demonstrate that the project will not
unreasonably interfere with navigation, fishing, and public recreation and, therefore, DSL must deny
the permit.

The project does not comport to sound policies of conservation and would interfere with
public health and safety. McCall’s failure to provide DSL with the necessary information makes the
DSL’s ability to review the impacts, effects, alternatives, and mitigations for the project impossible.
Also, as noted in the groups’ prior comments, the facility and project is located within a liquefaction
zone for seismic activity, posing significant risks to human life. See Statewide Planning Goal 7.
McCall has failed to demonstrate that the project will not interfere with public health and safety.
Without this basic information, DSL lacks the statutory authority to issue the permit. Nor does
McCall demonstrate conformance public uses or compatibility with comprehensive plans, especially
as these relate to the project’s purposes and Zenith connection. Because McCall has not
demonstrated that the state’s waters’ will be protected, particularly as to increased navigation and
fuel transport, the DSL must deny the permit because the project is not consistent with the
protection and conservation of Oregon’s waters. McCall has failed to demonstrate compliance with
NEPA, the Rivers and Harbors Act, and the Clean Water Act, as discussed the comments submitted
to the Corps and DEQ. We understand that there has been a consultation with NMFS but again the
public does not have access those records. Further, McCall has failed to demonstrate compliance
with state conservation policies, including but not limited to the Oregon Conservation Strategy
(identifying the Portland Harbor Superfund Site as requiring a high level of coordination) and
Statewide Planning Goal 15.

Without disclosure of the true purpose and need of the project, DSL cannot properly
evaluate whether the applicant has identified the adverse effects of the proposed project, including
indirect and cumulative effects, or provided all practicable mitigation. ORS 196.825(3)(i).

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 Without the information needed, DSL cannot evaluate whether the project would be
consistent with the protection, conservation and best use of the water resources of this state as
specified in ORS 196.600 to 196.905; or that it (b) would not unreasonably interfere with the
paramount policy of this state to preserve the use of its waters for navigation, fishing and public
recreation. ORS 196.825(1). The DSL is also required to actively and continually improve the
removal fill program, including a requirement to “enhance[e] resource protection.” ORS 196.795(1).
“Enhancement” means to improve the condition and increase the functions and values of an
existing degraded wetland or other water of this state. OAR 141-085-0510(34). “Water resources”
“includes not only water itself but also aquatic life and habitats therein and all other natural
resources in and under the waters of this state.” ORS 196.800(14).

As referenced above, nor does the project have independent utility. OAR 141-085-
0565(3)(a).

Conclusion

For the reasons above, and as the Commenters may state in supplemental comments should
the Final EA records become available to the public, we urge DSL to deny the McCall application
for a dredge fill permit.

Sincerely, on behalf of the Commenters,

s/ Elisabeth Holmes
Elisabeth Holmes, Staff Attorney
Willamette Riverkeeper
P.O. Box 293
Eugene, Oregon 97440
Tel. (541) 870-7722
Email: eli@willametteriverkeeper.org

Enclosures: See Index with weblinks to referenced materials.

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 Index of Documents for Willamette Riverkeeper et al. Comments to Department of State
Lands on McCall Oil Corp. Application (April 24, 2020)
provided via weblinks and e-mail

Coalition Comments submitted to DEQ on 401 Certification (Nov. 27, 2019)

https://www.scribd.com/document/458148744/2019-11-27-Coalition-Comments-to-DEQ-on-
401-Cert-for-McCall-FINAL

and Attachments B-D

https://www.scribd.com/document/458150998/Attachment-B-D-of-Coalition-Comments-to-
DEQ-RE-McCall-11-27-2019-pdf

Coalition Comments to the Corps on 404 application (Nov. 27, 2019)

https://www scribd com/document/458162940/2019-11-27-Comments-to-Corps-
mccallDredgingApplicationNotice

And Attachments 2-3

https://www.scribd.com/document/458150841/Attachment-a-2-Portland-Harbor-Final-Remedial-
Investigation-Maps-Section-3-2

https://www scribd com/document/458150563/Attachment-a-3-LU-19-254153-Drawings