Final consistency determinations for Skagway River & West Creek

These are the final determinations received by the City of Skagway

SUBJECT: SKAGWAY RIVER 10 (FLOOD CONTROL)
STATE ID NO. AK0209-07J
FINAL CONSISTENCY DETERMINATION
The Division of Governmental Coordination (DGC) has coordinated the State's review of the City of Skagwayís proposed project for consistency with the Alaska Coastal Management Program (ACMP), and has developed this final consistency determination based on reviewers' comments, your elevation requests to the directors and commissioners of the resource agencies, a review of the regional-level and director-level proposed consistency determinations, file information, and discussions which took place during the director-level elevation meeting on January 31, 2003 and the commissioner-level elevation meeting on February 21, 2003.

Scope of Project Reviewed
Proposed are flood control dikes along the Skagway River to protect the City of Skagway in the event of a 100-year flood, and to fill and reclaim land from the river floodplain on the west side for industrial use. The project will involve dike structures and revetments along both sides of the Skagway River from the Klondike Highway Bridge to about 5,300 feet upstream of the bridge, and will include dike construction, river excavation, a right-of-way (ROW) across state and private property, and fish passage and habitat enhancements in Dairy Creek. Much of the project is located on state or state claimed lands.
Specifically, the proposal includes:

DIKES: The project will place dike and revetment structures along both sides of the river, from just upstream of the Klondike Highway bridge to approximately 5,300 feet upstream, northeast of the Skagway city center. The proposed project will impact approximately 20 acres of the Skagway River below the OHWM.
The dikes will be 8í to 12í high and 30í to 40í wide at the base. The dike design is based on a scour depth of five feet below the thalweg depth. Since the existing grade in some areas will not allow excavation to that depth, Class III riprap will be placed at an elevation above total scour depth in those areas. Construction of the dikes and revetments will take place through low flow periods. Dikes on both sides of the river will be constructed as one project; the work will not be phased. The dikes will have a 14-foot wide maintenance access road at the top.

EXCAVATION: The project will import 33,000 cubic yards of riprap from a private source for the dike and revetment construction. The riprap will be used to anchor the toes of the dikes and revetments, including launch aprons, into the riverbed and to armor them from the river flow. The project will excavate 17,700 cubic yards of in-place riverbed material for the dike and revetment construction, including dike core and riprap bedding. All of this material will come from the footprint excavations of the dike and revetments, and includes the amount of riverbed material needed for dike core and riprap bedding. A total of 50,700 cubic yards of material will be used in the dike and revetment structures for flood control.
The City proposes to excavate an additional 17,900 cubic yards of material from an unspecified location in the area that is currently within the floodplain to fill and reclaim commercial and industrial land behind a section of dike that will be placed in the active floodplain. The City envisions the dike construction to occur before the fill is placed behind the dike. At the time of placement of the fill, the excavation area will not be in the active floodplain, as the active floodplain is proposed to be constrained by the constructed dike.
Work will be done during the winter low flows. If the river is flowing in the construction area, the City will isolate the construction area from the flowing waters of the river. The City intends to dig a diversion ditch within the floodplain and move the river away from the dike site. Other techniques such as dam and pump, or stream fluming, may be incorporated into the construction activity to insure that silt laden water is not carried into sensitive fish habitat. If a river diversion channel is constructed, it will be constructed such that the ends are left plugged until the main stem of the channel is completed, then the outlet end will be opened prior to the inlet end, to minimize the introduction of silty water into the river.

RIGHT OF WAY: The project utilizes or crosses parcels of land that may require rights of way, including USS 176 (Russell Metals), USS 1805 (riverbed lands where ownership is in dispute between David and Pamela Hunz and the State of Alaska), and portions of USS 5110 (claimed by the State of Alaska as riverbed of a navigable river). The City of Skagway has contacted all parties to arrange for the necessary rights of way for the project. This includes a December 2001, agreement between the City of Skagway, David and Pamela Hunz, and the State of Alaska to move forward with the project applications for permissions, authorizations and materials sales or leases without prejudice to any of the partiesí assertions of title to the land at issue.

DAIRY CREEK FISH PASSAGE: To provide access into the flood plain for gravel mining and channel maintenance, vehicular crossing of Dairy Creek is required. The project proposes to construct a bridge composed of a railroad flatbed car over Dairy Creek channel. The approximately 15í wide by 30í long span will be connected to the top of the dike at each end with concrete abutments.

MONITORING: Water levels and flow will be monitored at the Klondike Highway bridge, with an intent to determine when a flow of 4,000 cfs has been exceeded. Channel changes will be documented at permanent cross-section locations to establish channel maintenance requirements. After dike construction, monitoring will be conducted every two years or after a flood event of 4,000 cfs or greater. Monitoring will consist of surveying elevations and distances across three cross-sections, from dike to dike. Based on comparisons of current and historic cross-section elevations, estimates of current channel flow capacity at two water surface elevations will be determined: 1/bankfull and 2/design 100-year flood stage (38,000cfs). Survey data will be used to estimate volume of channel aggradation and/or degradation.

CHANNEL MAINTENANCE: The application states that ìcontinued gravel mining from the channel is anticipated, to remove deposited material, maintain a flow channel, and assure the integrity of the dike structures.î The U.S. Army Corps application for this project does not include future maintenance dredging of the river. If, based on the monitoring of the water flow and channel changes, mining is recommended for channel maintenance, the State of Alaska will review any proposed mining activities for permit authorizations and consistency with the ACMP at that time.

PROPOSED MITIGATION MEASURES: Minimization/mitigation efforts proposed to reduce impacts to the aquatic environment include: (1) coordinating the realignment of Dairy Creek and bridging its confluence with the Skagway River to promote fish passage; (2) the east side of the project has been designed to allow a break in the dike to allow some meandering of the river; and (3) the west dike just above the Klondike Highway bridge (the 400 feet or so that is immediately adjacent to the bridge) will follow the existing shoreline, instead of a straight dike through this area. The widening is expected to provide a slow flow area for fish to congregate prior to continuing upstream.

ADDITIONAL INFORMATION: Dry portions of the river bottom will be utilized for staging areas for storage of riprap, geotextile and other imported dike fill. Material storage will be restricted to short durations. Riprap materials will be obtained from local quarries within the Skagway area. The City of Skagway will establish work plans and methods of operation to minimize impacts to fisheries when dike construction and the flowing river are at the same location.

BACKGROUND AND NEED: Beginning in the 1940s, flood control dikes have been built on both sides of the river through the Skagway townsite and up to a mile upstream by the U.S. Army, private landowners, the U.S. Army Corps of Engineers, and the Alaska Department of Transportation & Public Facilities. Additionally, the City has attempted to improve flood plain management through land use regulations, participation in the National Flood Insurance Program, and special studies.
In 2000-2001, an airport expansion project improved flood control along the river adjacent to the townsite by excavating material from the riverbed beginning 1,400 feet downstream of the Klondike Highway bridge and continuing downstream approximately 7,000 feet to the intertidal zone, and by constructing runway and apron improvements in such a way as to enhance flood control. (ACMP review AK9806-04J). However, the community still faces a threat of inundation by catastrophic flooding as shown by hydraulic modeling and patterns of river channel migration over four decades. Based on the modeling and channel migration, flood control measures upstream of the Klondike Highway bridge are required.
The State resource agencies acknowledge the importance of this flood control project. ADF&G and ADNR met with the Skagway City Council this spring (2002) and agreed to expedite review of this project to the extent possible, with the understanding that the agencies had concerns with placing the dike beyond the existing ordinary high water (OHW) line.


Consistency Determination and Rationale
At your request, the Commissioners of the Alaska Departments of Environmental Conservation, Natural Resources, and Fish and Game have reviewed your elevation and proposed project. Based on that review, the State objects to your consistency certification, and has determined that your project, as proposed, is inconsistent with the enforceable policies of the ACMP.
Under the Alaska Coastal Management Program, habitats must be managed so as to maintain or enhance the biological, physical and chemical characteristics of the habitat that contribute to its capacity to support living resources (6†AAC†80.130 (a) and (b)). In addition, rivers, streams and lakes must be managed to protect natural vegetation, water quality, important fish or wildlife habitat, and natural water flow (6†AAC 80.130(c)(7)). Proposed projects that do not meet the habitat standard may be allowed if a significant ìpubic needî is demonstrated, there is no feasible or prudent alternative to meet the public need, and all feasible and prudent steps to maximize conformance with the standards will be taken (6 AAC 80.130(d)).
The project, as proposed, locates the west side of the dike at approximately Station 31+00 to Station 44+00 substantially within the surveyed and defined ordinary high water line of the Skagway River stream banks. This particular portion of the proposed dike is structured and located primarily to allow fill to be placed behind the dike to reclaim lands lost to the river, and to develop additional lands for commercial and industrial purposes. Based on the information and analyses provided within the project packet, the State has determined that the particular portion of the proposed dike would likely limit the stream channel, increase the stream velocity in this area, reduce the ability and area available for the river to meander and realign itself, and remove any slow flow capacity, natural vegetation, and habitat from the area. Based on this reasoning and rationale, the proposed project is not consistent with the standard at 6 AAC 80.130.
As the City of Skagway has asserted, the State confirms that there is a ìsignificant public needî for the flood control measures this project offers. The State also agrees with the City of Skagway that there is a ìpublic needî for commercial and industrial lands in Skagway. However, the City of Skagway did not make a compelling argument that there is a ìsignificant public needî for reclamation of the land and creation of additional commercial and industrial lands at this particular site within Skagway. The State determined that the public need for the additional commercial and industrial lands created through the proposed reclamation was not great enough to justify the adverse impacts to the habitat of the immediate area. As such, the project, and specifically the area identified in the alternative measure, needs to be designed so that all feasible and prudent steps to maximize conformance with the standards contained in 6 AAC 80.130(b) and (c) are taken.
The standard contained at 6 AAC 80.130 speaks generally to the maintenance of ìhabitats,î and identifies that ìÖ rivers, streams, and lakes must be managed to protect natural vegetation, water quality, important fish or wildlife habitat and natural flow.î The State, in cataloguing the Skagway River and Dairy Creek as anadromous rivers under AS 16.05.870, has identified the area between the ordinary high water lines on the stream banks as ìimportant fish and wildlife habitat.î The project site is located in or near important fish habitat essential for chum and coho salmon, and Dolly Varden char spawning, rearing, and/or migration. In addition, Eulachon eggs have also been documented in the Skagway River, indicating spawning occurs in the intertidal area of the river.
The west side dike at the discussed location is well within the surveyed and defined ordinary high water line (EPF 2001-0003). Based on this dike location within the ordinary high water line of important fish habitat, the State has determined that the proposed dike and revetment structures and proposed land reclamation has not maximized conformance with the standards contained in 6†AAC†80.130(b) and (c) to manage these habitats to maintain or enhance the biological, physical, and chemical characteristics of the habitat, natural vegetation, water quality, and water flow, and violates 6†AAC†80.130(d)(3).
The proposed project does not include nor propose measures or conditions that would minimize the disturbance of the river channel and adjacent lands, does not protect the riverine water quality, nor does it minimize erosion and the introduction of suspended material and petroleum products into the waters. For these additional reasons, the project is also inconsistent with the standards and requirements at 6 AAC 80.130, 6 AAC 80.140 and 18 AAC 70.

Further Discussion
In accordance with 15 C.F.R. 923.62(d), the State worked with you and attempted to agree upon alternative measures, conditions, and advisories that would permit the State to concur with your consistency certification and find the project consistent. These alternative measures are identified in the Director-level proposed consistency determination, dated February 6, 2003, and describe how the alternative measures, conditions, and general advisories, if adopted by you, may have permitted the proposed project to be conducted in a manner consistent with the enforceable policies of the ACMP. The State suggests that, if you wish to pursue a similar project for flood control for the City of Skagway, you review, consider, and analyze the alternative measures, conditions, and general advisories for inclusion as part of your project design and description, if you deem them appropriate.
Pursuant to 15 C.F.R. 930, subpart H, and within 30 days from receipt of this letter, you may request that the Secretary of Commerce override this objection. In order to grant an override request, the Secretary must find that the activity is consistent with the objectives or purposes of the Coastal Zone Management Act, or is necessary in the interest of national security. A copy of the request and supporting information must be sent to the State of Alaska, Alaska Coastal Management Program, Division of Governmental Coordination, and the federal permitting or licensing agency. The Secretary may collect fees from you for administering and processing your request.
This final consistency determination is a final administrative decision for purposes of Alaska Appellate Rules 601-612. Any appeal from this decision to the superior court must be made within 30 days of the date of this determination.
By copy of this letter, I am informing the Corps of Engineers of DGC's final consistency determination.
If you have any questions, please do not hesitate to contact me at 907-465-8797 or email at Randy_Bates@gov.state.ak.us.
Sincerely,
Randy Bates
Project Analyst

SUBJECT: WEST CREEK 1
STATE ID NO. AK 0209-14J
FINAL CONSISTENCY DETERMINATION

The Division of Governmental Coordination (DGC) has completed coordinating the State's review of the City of Skagwayís proposed project for consistency with the Alaska Coastal Management Program (ACMP) and has developed this final consistency determination based on reviewers' comments.

Scope of Project Reviewed
The project subject to this consistency review is the City of Skagwayís stabilization of up to 2,500 linear feet of the West Creek streambanks that were reconfigured by a catastrophic glacial flood event. The work, which has been mostly accomplished, includes up to 2,500 linear feet of bank stabilization, bridge abutment protection and/or a new dike system along the new bank configuration of West Creek in Dyea. The project affects approximately five acres of area.
Completed work includes the following: excavation of up to 70,000 cubic yards (cy) of earthen materials from within the newly established bank-to-bank confines of West Creek, discharge of up to 30,000 cy of riprap sized materials, up to 20,000 cy of rubble (mid-sized stone) and up to 20,000 cy of gravel materials onto site. Approximately 4,450 cy of the materials were discharged below a newly established ordinary high water mark, onto approximately .7 acres of the waters of the United States.
A portion of the streambank was left in a natural state. Additional work may include armoring of the entire bank, if necessary. Should the creek begin to breach or highly erode the natural banks, the option of additional bank protection will be available to the City of Skagway. This additional work would require an additional permit and further ACMP review.
The remainder of the work includes habitat restoration through placement of rock/tree clusters in the riverbed, and seeding of vegetation. The habitat restoration will be accomplished with natural materials from the site already stockpiled for that purpose, with direction from ADF&G. The location is West Creek, a tributary of the Taiya River, from Mile 11 Dyea Road, to West Creek Bridge, in Skagway, T.†27 S, R.†59 E, Section†15, CRM.

Additional Information
The completed work was accomplished outside of the work window ordinarily required for the protection of fish habitat. An Emergency (AS 16.05.890) Fish Habitat Permit FG02-I(J)-20 was issued immediately after the catastrophic flood. The previously existing habitat was drastically altered and is unlikely to contain viable incubating fish eggs. The remaining work must be completed before water levels start to rise in the spring.
The construction of dikes to protect private property and public access had significant adverse impacts on the remaining vegetated banks of West Creek. The City of Skagway agreed to incorporate habitat structures into the flood plain while constructing the dikes. Several log and boulder features appear to be functioning as intended. Some structures in the middle reach appear to have ìfallen apartî and require maintenance to function properly. No habitat structures were constructed in the lower reach, above the West Creek Bridge. The City has agreed to consolidate material in identified habitat structures and to construct 4-6 similar habitat structures in the lower reach. ADF&G will assist the contractor with these structures as time allows.
The completed dikes in lower West Creek are located on an outwash fan, which is an inherently unstable feature. In a natural state the active channel will migrate randomly back and forth across the fan. The completed dikes will artificially stabilize the active channel in one location for a period of time. However, the active channel is already perched above the surrounding ground level in some locations. As this channel aggrades, which is why outwash fans are unstable, the dikes will eventually be over topped. Because the channel will then be higher than the surrounding area, the resulting flooding will be much more severe when it happens. It is advised that development in the West Creek area be restricted, even with aggressive maintenance it will be a difficult area to protect. Property owners in this area should be made aware of this significant threat.
During flood control remediation a crossing of an overflow channel of the Taiya River was replaced with four undersized pipes with no authorization. The City has agreed to replace these culverts with a clear span structure. Though related to this project this will be permitted as a separate action.
This proposed consistency determination applies to the following federal and State authorizations per 6†AAC†50:

U.S. Army Corps of Engineers
Sections 404 and 10 Permit No. 2-2002-0824

Alaska Department of Environmental Conservation (DEC)
Certificate of Reasonable Assurance (401) (Waived)

Alaska Department of Fish and Game (DFG)
Fish Habitat Permit

On September 30, 2002, the Department of Environmental Conservation informed me that it waives its right under Section 401 of the Clean Water Act to certify this Section 404 permit.

No State or federal agency may issue an authorization before DGC issues a final consistency determination. Most State agencies should issue permits within five days after DGC issues a final consistency determination.

The Alaska Departments of Environmental Conservation, Fish and Game, and Natural Resources and the Skagway coastal resource district have reviewed your proposed project. Based on that review, the State concurs with your certification that the project is consistent with the ACMP with the following alternative measures, which will appear as stipulations on the State permit noted:

Fish Habitat Permit
In-water work shall occur in West Creek before April 30. If work is to be performed outside of this window, prior written approval from ADF&G is required. DGC must be informed of the request for modification.
Alteration of streambanks must be minimized and restricted to that necessary to construct the project. Immediate and practicable measures must be taken to maintain water quality in and adjacent to anadromous fish streams.
Precautions and controls must be used to prevent incidental and accidental discharge of petroleum products. Sorbent pads and other spill cleanup materials must be available on site, and shall be used to contain and clean up any incidental petroleum products spilled as a result of construction activity.
Rationale: These measures are necessary to protect riverine water quality and habitat by minimizing the disturbance of the river channel and adjacent lands, and by minimizing the introduction of suspended material and petroleum products into waters in accordance with
6 AAC 80.130 (HABITATS) and 6 AAC 80.140 (AIR, LAND & WATER QUALITY), and
18 AAC 70 (WATER QUALITY STANDARDS).

Your consistency determination may include reference to specific laws and regulations, but this in no way precludes the applicantís responsibility to comply with all other applicable State and federal laws and regulations.

This consistency determination is ONLY for the project as described. If the applicant proposes any changes to the approved project, including its intended use, prior to or during its siting, construction, or operation, you must contact this office immediately to determine if further review and approval of the revised project is necessary. Changes may require amendments to the State approvals listed in this consistency determination or require additional authorizations.

This final consistency determination represents a consensus reached between you as the project applicant and the reviewing agencies listed above, regarding the conditions necessary to ensure the proposed project is consistent with the ACMP. We are informing the federal agency responsible for approving a federal authorization for your project that your original proposal has been modified subject to the conditions in this consistency determination.

This final consistency determination is a final administrative decision for purposes of Alaska Appellate Rules 601-612. Any appeal from this decision to the superior court must be made within 30 days of the date of this determination.

If the proposed activities reveal cultural or paleontological resources, please stop any work that would disturb such resources and immediately contact the State Historic Preservation Office (907-269-8720 and the U.S. Army Corps of Engineers (907-753-2712) so that consultation per section 106 of the National Historic Preservation Act may proceed.

By copy of this letter, I am informing the Corps of Engineers of DGC's determination.

If you have any questions regarding this process, please contact me at 907-465-8791 or email sandy_harbanuk@gov.state.ak.us.

Sincerely,
Sandy Harbanuk
Project Review Coordinator