A Conditional Use permit to extract 200,000 cubic yards of material from a privately-owned streambed in Lemon Creek over a five-year period.
Location: Vacant Lemon Creek streambed - no address
Applicant: Jan Van Dort
DATE: June 21, 2007
TO: Planning Commission
FROM: Teri Camery, Planner
Community Development Department
FILE NO.: USE2006-00054 - Conditional Use
PROPOSAL: Conditional Use Permit to extract 200,000 cu yards of material from a privately-owned streambed in Lemon Creek over a five year period
Access: Anka Street
Existing Land Use: vacant Lemon Creek streambed
Surrounding Land Use: North - Davis Avenue residential
South - Anka Street industrial
East - Lemon Crk/CBJ Gravel Pit
West - Lemon Creek
LIST OF ATTACHMENTS
(Attachments 1-20 are included in the May 16, 2007 staff report. Only Attachments 21 and higher will be included in this report. Attachments do not include Blue Folder items received for the 5/22/07 hearing.)
PROJECT UPDATE AND SUMMARY OF UPDATED ANALYSIS
This project was reviewed at the May 22, 2007 Planning Commission and continued to the upcoming June 26, 2007 hearing date (originally June 12, 2007) so that staff could respond to the Commission’s requests for additional information, and to correct an error in the public notice. The Commission passed the following motion:
To continue USE2006-00054 to the next Regular Planning Commission meeting currently scheduled for June 12, 2007 [on June 12 the Commission moved the meeting to June 26], for staff to utilize that time to provide adequate notice, provide answers to the questions of the Commission regarding the even-and-odd year gravel extraction plan, obtain an opinion from the City Assessor regarding adjacent property values, look at the timing window to better account for the potential fall flood situation in terms of the 3’ berms, and to possibly obtain comments from the remaining agencies.
The following analysis will address each of the above items, provide an updated project description, provide an update on recent gravel extraction, review new problems associated with access to the site, and update the final recommendation and conditions. Issues that are not specifically addressed in this new analysis follow the analysis of the May 15, 2007 report.
Project Description Changes. The applicant has changed the timing window for the project from the previous May 15 to March 15 window allowed by DNR-Habitat to December 1 through March 15. The applicant is also limiting removal of gravel to 40 days per year. However, the applicant states “This would not apply to work authorized under an emergency determination made by a public agency or the work connecting excavations which the Tile 41 permit requires us to do after May 15 to allow spawning salmon to enter the post-excavation low areas of the streambed.” (Attachment 23)
Staff will further review timing issues and emergency determinations later in this staff report.
Public Notice. A public notice sign was posted on May 28 at the site announcing the June 26 hearing date. On June 12, an abutters notice was mailed to all property owners within 750 feet of the property, a 50 percent greater range of notice than the required 500 feet. Staff has confirmed that the database error has been corrected and Riveredge Condominium owners have received notice of the project.
City Assessor’s Analysis of Property Value Impacts. Staff received an email comment letter from the City Assessor on May 29, 2007. The Assessor states, “My initial reaction was of concern, mainly for the Riveredge Condo folks. But after reading the staff presentation, most of my concerns were addressed within your report….All and all, these issues have been addressed in the staff report and conclusions.” (Attachment 22)
Staff’s May 14, 2007 staff report analysis on noise, traffic, and neighborhood harmony is unchanged. However, staff notes a comment letter from a neighbor with concerns about noise and heavy equipment (Attachment 21), and reminds the Commission about another letter from a neighboring resident that was included as a Blue Folder item at the May 22, 2007 hearing.
New Agency Comments. At the Planning Commission’s request, staff asked the National Marine Fisheries Service (NMFS) to submit additional comments on the project, even though NMFS’ final review will not take place until the applicant has submitted the Essential Fish Habitat Assessment. NMFS’ comments are included in Attachment 25. Staff also located an additional letter from the U.S. Fish and Wildlife Service (USFWS), addressed to the U.S. Army Corp of Engineers, regarding this project (Attachment 24).
NMFS is concerned that the development plan allows gravel mining to continue until 200,000 cubic yards of material has been mined. Both NMFS and CBJ Engineering have stated that the available amount of material is likely to be 100,000 cubic yards. Since the site is a depositional zone, gravel will be continuously deposited from upstream locations, so the activity of extracting 200,000 cubic yards could continue indefinitely, resulting in channelization and habitat degradation. To address this issue, staff recommends a condition stating that the permit shall expire in 5 years or after 200,000 cubic yards has been extracted, whichever comes first.
NMFS is also concerned that site restoration measures, as outlined on page 3 of the DNR Draft Title 41 Permit (Attachment 10) and in the ACMP Project Review Description (Attachment 4) are vague and inadequate, without site specific goals, objectives, or site plans. NMFS notes that the plan states that “up to” 100 cy of woody debris will be collected at several points to create “hard points” that would promote the formation of gravel bars, and recommends a specific amount of wood with dimensions and the specific location of the hard points and the method of anchoring. NMFS also recommends a back-up plan if restoration measures fail. Previous comments from USFWS (Attachments 24 and Attachment 12) echo these concerns.
The Juneau Watershed Partnership a non-government organization, also submitted concerns about the proposal (Attachment 34). They highlighted that even though Lemon Creek is a listed impaired waterbody, it provides habitat for a variety of fish. Conservation of this resource will require co-operation of many organizations. They expressed a desire to have the parameters for emergency gravel extraction to be clearly defined and a clear restoration plan in place.
Staff interprets DNR-Habitat’s position, as outlined in the Draft Title 41 permit, as waiting to design these features with the applicant after the gravel extraction is completed so that the design can reflect the final conditions on site. This is commonly referred to as “Adaptive Management.” The disadvantage of this approach is that there are no measures for enforcement if the applicant decides not to follow the recommendations, no clear plan to follow, and no clear measure of the success or failure of the restoration. The advantage is flexibility and an ability to redesign the measures if the final conditions in the creek are significantly different than originally predicted.
A compromise approach could be taken which would provide specific measures, but within a range of options. This would allow for enforcement and also flexibility. At the time of this writing, the resource agencies are considering an additional meeting to revisit many of the details. If the Planning Commission chooses to continue the review to a later date, it is possible that a more specific restoration plan may be developed and agreed upon.
Timing Window As noted earlier, the applicant has changed the timing window for the project from the previous May 15 to March 15 window allowed by DNR-Habitat to December 1 through March 15. The applicant is also limiting removal of gravel to 40 days per year. However, the applicant states “This would not apply to work authorized under an emergency determination made by a public agency or the work connecting excavations which the Tile 41 permit requires us to do after May 15 to allow spawning salmon to enter the post-excavation low areas of the streambed.” (Attachment 23)
NMFS’ previous comments recommended mining only in the low-flow winter months (Attachment 13), and NMFS has incorporated the applicant’s recent project change for low flow winter operation in their recent comment letter. Later in this staff report, under the heading “Recent Gravel Extraction,” staff recommends against emergency gravel extraction. However, the exception for work after May 15 to connect the excavation areas (to avoid the problem of fish getting trapped in ponds) needs to be clearly defined as a project condition. In the most recent comments, NMFS has stated that this activity will take one or two days. USFWS has stated that one week will be needed in May (Attachment 29). Staff cannot find any written statements from DNR-Habitat or the applicant regarding exactly how much time is necessary.
To provide flexibility and also allow for some measurement of enforcement, staff recommends the following condition:
Gravel operations shall take place between December 1 and March 15. No in-water work shall be allowed between March 16 and November 30 with the following exception:
In-stream work to connect the excavated sections of the creek shall be allowed for one 7 day period between May 15 and June 15. The applicant shall provide notice to CBJ Engineering and DNR-Habitat before work commences.
Even/odd year Gravel Extraction Plan. The even/odd year gravel extraction method is described in the DNR-Habitat Draft Permit (Attachment 10) and in NMFS’ recent comments on page 1 (Attachment 25). This approach is not included in the ACMP Project Description nor in Project Narratives from the applicant. This approach lays out a plan which seems necessary for the proper and orderly progression of mining in the creek over the five year period. To address this issue, staff recommends the following condition:
The even/odd year plan for gravel extraction, as described in the December 28, 2006 DNR-Habitat Draft Title 41 Permit and the June 15, 2007 letter to CDD from NMFS’, shall be integrated into the project description and development plan and implemented through the annual grading permit issued by CBJ.
Three Foot Berm. The analysis of the project from a hydraulic engineer has not addressed the adequacy of the berm to contain flows (Attachment 9).
Ron King, CBJ Regulatory Engineer, has reviewed the hydraulic report and had the following comment:
The area of gravel extraction will fill with ground water even though the stream has been diverted. Excavation in the water will stir and suspend fines. Building the berms will have the same result. The question, “Will excavation have an adverse effect on the water quality within the site and how detrimental will that be on habitat?” I believe water quality will deteriorate and fines will be suspended. What method will be used to prevent sediment from entering the stream channel? Is it necessary to prevent fines from leaving the site in order to safe guard habitat? In addition, the site mapping, berm layout and other drawings submitted are hard to read. There is a conflict between the typical sections. Odd years show an existing gravel bar which is above water level. The even years shows a water level with gravel above the water level for the previous year. How does that happen? Will the trench areas previous extracted replenish and fill above last years water level? The typical sections do not reference any datum.
This leads to more questions without answers. The data presented is unclear and does not reference existing elevations or water level and there is no scale. There is not enough information to verify slopes, bank heights and water level (measured where and when with what flows?) for me to comment on the correctness of this application.
Therefore, staff is recommending a condition that one month before the commencement of each mining season, the applicant shall submit a mining plan to be reviewed by the CBJ Engineering Department. This plan must be approved prior to commencement of gravel mining. Such plan shall include a detailed explanation of gravel bar location, height, composition and plans for removal.
Ralph’s Way/Anka Street Access. On May 22, 2007, the Planning Commission approved a streamside setback Variance for a truck scale located on Ralph Horecny’s property at Anka Street and Ralph’s Way. This site is the upland access point for trucks and heavy equipment for the privately-owned streambed for gravel extraction that is part of the same parcel. The Notice of Decision for this Variance (VAR2007-00010), was issued with a number of conditions that affect the gravel extraction access point. These include the following:
In summary, these conditions require extensive revegetation and a berm that stretches from property line to property line to direct all drainage away from the creek. These conditions appear to be in conflict with the proposed access road for gravel extraction from the creek.
Secon applied for the truck scale variance with permission from the underlying landowner, Mr. Horecny. Landowner permission is required for all permit applications on the standard Development Permit Application form, and Secon now has an officially permitted use on the property. Staff presented the problem to the applicant (Mr. Van Dort), who responded via E-mail as follows, “If you believe the scale requirements are inconsistent with our plan, then show that to be the case and SECON can alter their application. You can tell the Commission that, as the landowner, the first priority will be given to the gravel permit—even if this means removing the scales.” In a later message, the Mr. Van Dort made a similar statement, “For purposes of the hearing, the use of the area for river access trumps any use for scales and the scales will be removed to the alternate location if necessary.” (Attachment 27) In the latest message, Mr. Van Dort asserted the following:
“If you look at the plat, I own a 60 foot easement across the creek from the end of Ralph’s Way for ingress, egress, etc. I did not accept the variance conditions. They destroy the utility of my easement and are therefore invalid. Instead of our proposal being inconsistent with the variance restrictions, the variance is inconsistent with my legal rights as the owner of the easement.” (Attachment 30)
The plat, which includes the 60 foot access easement from the creek, has been included for your reference as Attachment 31. The applicant’s messages have raised a number of legal issues which have been forwarded to the Law Department. Law has not responded at this writing. Staff recommends the following condition:
If the final approved road access plans from Lemon Creek at Ralph’s Way cannot safely comply with the permit conditions for the truck scale approved under VAR2007-00010, no grading permits shall be issued until the truck scale has been removed.
Until Secon’s truck scale is moved from the site, the conditions of the variance have been formally modified in a manner that would allow truck access from the stream, or until the applicant comes up with the means to use this access point while still complying with the variance conditions, the Ralph’s Way/Anka Street access point is not an option for this development. The only other option is to change the access point for the gravel extraction. This would be limited to the Davis Avenue access, which is not developed and would result in truck traffic routed through a residential area. (See Attachment 1, Vicinity Map, for an approximation of this access point.) The applicant states, “Ralph’s Way is the only practical access to the creek and I am not changing my application…” (Attachment 27)
As a secondary issue regarding the Ralph’s Way/Anka Street access point, development plans for the access road do not match the features on site. A cross-section of the haul road is included in Attachment 3, on page 4 of the drawings. A written description of the road is included in the Alaska Coastal Management Program project description in Attachment 4.
CBJ Engineering’s initial review focused on streambed mining and not the road access from Ralph’s Way/Anka Street to the streambed. As proposed, this access road will consist of a causeway 20 feet wide at the top and 40 feet wide at the base. The causeway will be built of material dredged from the riverbed and armored with riprap. The plans are not drawn to scale but they indicate the grade will be 8% and the ramp will be approximately 50 feet long. This means the ramp could only be 4 feet high at the highest point. During a staff visit to the site, it was estimated that the height of the bank is closer to 15 feet high. Based on a maximum 8% grade, this would require a causeway just under 200 feet long to reach the elevation of Ralph’s Way/Anka Street. The base of the causeway would be at least 80 feet wide at present water levels. Since the stream bed was recently lowered during emergency gravel extraction, the actual width would be greater than 80 feet wide. The current review indicates that the plans significantly understated the size of the access road and represents significant potential to partially block the stream. The CBJ Chief Regulatory Engineer states that the road design is incomplete, and elevations and current topographic information are needed. CBJ Engineering also questions the number and size of culverts proposed (Attachment 32). NMFS shares these concerns in their recent comments (Attachment 25, page 3).
The proposed road is located within a mapped Floodway, as classified on FEMA Flood Boundary and Floodway Map (020009 0885 B). According to CBJ Code and FEMA regulations, Floodway “means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.” (Attachment 33 includes relevant code information from 49.70.400, Flood Hazard Areas) Ralph’s Way/Anka Street side of the site is a cut bank meaning it has the deepest channel and highest velocity flow. A causeway perpendicular to the channel could act as a dam during a flood.
Therefore, the applicant must provide a hydraulic engineer’s analysis that establishes that the road will not increase the base flood elevation more than one foot. The previously submitted hydraulic assessment from a licensed engineer (HydraCon Engineering, Attachment 9) did not address the temporary access road, only the streambed mining. The application does not contain a review of flood potential, or a review of whether the number or size of the culverts is adequate.
The ACMP project description indicates that the culverts will be pulled from the river every year by March 15 and reinstalled after May 15. This was noted before the project description change, which would now allow streambed mining only from December 1 through March 15. However the nature of floods are that they are unpredictable, and could happen even during periods with normally low water levels. Inadequate measures to handle flood waters could result in a catastrophic failure with the culverts and rip-rap washed downstream, or could unpredictably divert river flows to other areas.
The access road needs an updated project design and an analysis, approved by CBJ Engineering, from a hydraulic engineer which shows that the project meets FEMA requirement. Staff recommends a condition as follows:
One month prior to the start of the mining season, the applicant shall submit an engineered project design for the access road, with topographic features and an analysis by a licensed hydraulic engineer which demonstrates that the road design and culverts are adequate and the road will not increase the base flood elevation in violation of CBJ Flood Hazard and FEMA regulations. The design and analysis shall be approved by CBJ Engineering before any construction or mining activity commences.
Recent Gravel Extraction in late May/early June. On May 23, 2007, the applicant announced that his condominium property was in danger because the flow from Lemon Creek had changed. He proposed emergency gravel extraction to alter the flow, which he has completed, and proposes armoring the banks with a permit from the U.S. Army Corps of Engineers in the fall. DNR-Habitat issued a permit for the development. The applicant extracted 2,300 cy of material (230 truckloads) from the site using the road which comes down from building site of the final condominium in the Riveredge Condos. Trucks were routed from Davis Ave to Glacier Hwy.
DNR-Habitat did not go through the proper review process to issue the permit, and federal agencies (NMFS and USFWS) believed that the emergency gravel extraction activity did not protect the streambanks. The activity did not meet Corps of Engineers requirements for emergency action. Mr. Van Dort did not apply to the CBJ for any permits related to this emergency extraction. Therefore, CBJ Engineering was not able to thoroughly review the situation, but observations as the extraction was underway by CBJ Engineering personnel did not indicate that an emergency situation existed.
Photos and email messages regarding this activity are included for your reference in Attachment 28. Staff raises this issue because the applicant has proposed a change to the project description and timing window to allow operation from December 1 through May 15, with an exception for emergency situations. Specifically, the applicant states, “This [timing window] would not apply to work authorized under an emergency determination made by a public agency or the work connecting excavations which the Title 41 permit requires us to do after May 15 to allow spawning salmon to enter the post-excavation low areas of the streambed.” (Attachment 23)
The Sand and Gravel section of the CBJ Land Use Code, 49.65.200, list four categories of development that are exempt from the Conditional Use Sand and Gravel Permit. There is no category for an emergency, and no other exemption category that would apply to the proposed development.
Bank stabilization would appear to be the appropriate method for addressing bank erosion. Bank stabilization is regulated by the U.S. Army Corps of Engineers, not CBJ, and the Corps has regulations which allow for emergency bank stabilization when necessary. If gravel extraction is necessary for bank stabilization, the applicant must plan for the activity in advance and submit an additional or modified gravel extraction application for Planning Commission review and approval. Staff recommends a condition confirming this position.
An exception to the timing window for the necessary work to connect the excavation areas has been addressed in the timing window section of this staff report.
CBJ §49.15.330 (e)(1), Review of Director's Determinations, states that the Planning Commission shall review the Director's report to consider:
1. Whether the application is complete; and,
2. Whether the proposed use is appropriate according to the Table of Permissible Uses;
3. Whether the development as proposed will comply with the other requirements of this chapter.
The Commission shall adopt the Director's determination on the three items above unless it finds, by a preponderance of the evidence, that the Director's determination was in error, and states its reasoning for each finding with particularity.
CBJ §49.15.330 (f), Commission Determinations, states that even if the Commission adopts the Director's determination, it may nonetheless deny or condition the permit if it concludes, based upon its own independent review of the information submitted at the public hearing, that the development will more probably than not:
1. Materially endanger the public health or safety;
2. Substantially decrease the value of or be out of harmony with property in the neighboring area; or,
3. Not be in general conformity with the comprehensive plan, thoroughfare plan, or other officially adopted plans.
Per CBJ §49.15.300 (e)(1)(A thru C), Review of Director's Determinations, the Director makes the following findings on the proposed development:
1. Is the application for the requested conditional use permit complete?
Yes. We find the application contains the information necessary to conduct full review of the proposed operations. Some areas of additional information are needed and conditions have been added to the staff report requiring specific hydraulic engineering analysis. The application submittal by the applicant, including conditions proposed by CBJ staff, and appropriate fees, substantially conforms to the requirements of CBJ Chapter 49.15.
2. Is the proposed use appropriate according to the Table of Permissible Uses?
Yes. The requested permit is appropriate according to the Table of Permissible Uses. The permit is listed at CBJ §49.25.300, Section 14.500 for the Industrial and Rural Reserve zoning districts. However, this does not include permission to conduct “emergency gravel extraction” in the adjacent D10 residential neighborhood.
3. Will the proposed development comply with the other requirements of this chapter?
Yes. The proposed development complies with the other requirements of this chapter. Public notice of this project was provided in the May 11 and May 18 issues of the Juneau Empire's "Your Municipality" section, and a Notice of Public Hearing was mailed to all property owners within 500 feet of the subject parcel. A second public notice was provided in the June 15 and June 22 issues of the Juneau Empire's "Your Municipality" section, and a second Notice of Public Hearing was mailed to all property owners within 750 feet of the subject parcel with verification that all owners of the Riveredge Condominiums received notice. Moreover, a Public Notice Sign was posted on the subject parcel, visible from the public Right of Way.
4. Will the proposed development materially endanger the public health or safety?
No. With acceptance of the suggested conditions requiring warning signs and a 4:1 slope along excavated areas, and a condition requiring verification that the proposed access road complies with FEMA Floodway regulations, potential threats to public safety will be adequately addressed.
5. Will the proposed development substantially decrease the value of or be out of harmony with property in the neighboring area?
No. Heavy equipment operating in the stream will generate substantial noise for properties facing the creek. However, hours of operation shall be reduced on Saturdays in compliance with Title 42 regulations regarding Disturbing the Peace. Traffic flow will blend in with existing industrial traffic on main roads and will not go through residential areas. The mining develop-ment will benefit surrounding properties by reducing the flood hazard, while extensive project conditions are in place to prevent damage to banks of the properties adjacent to the creek. As discussed above, the CBJ Assessor was contacted concerning this proposal and he did not believe the proposal would reduce neighboring property values.
6. Will the proposed development be in general conformity with the land use plan, thoroughfare plan, or other officially adopted plans?
Yes. The proposed development supports the designations and policies of the Juneau Comprehensive Plan, 1995 Update, specifically Policy 3.10 regarding sand and gravel resources.
Staff recommends that the Planning Commission adopt the Director's analysis and findings and grant the requested Conditional Use permit. The permit would allow the extraction of up to 200,000 cubic yards of gravel from Lemon Creek over a period of five years, subject to the following conditions [as originally stated in the May 15, 2007 staff report with changes and additions noted in BOLD]:
1. The operator shall stockpile about 50 cubic yards of broken rap, equivalent to Class I rip-rap, near the project area to address emergencies if the flow becomes redirected towards the bank. If the rock is not used it may be sold when the project ends.
2. Prior to issuance of the first year’s grading permit and approval of the first year mining plan, the operator shall submit a bond of $30,000, sufficient to repair any serious bank damage.
3. [REVISED] By November 1, one month before the commencement of each mining season, the applicant shall submit a mining plan. Such plan shall include:
4.Prior to the commencement of mining, the applicant shall be required to stake property lines and a line offset 10’ from property lines.
5.Prior to the commencement of mining the applicant shall make a video of the entire area and submit the video to the Engineering Department.
6. The top of excavation slopes shall be prohibited within 10’ of any banks or the property lines.
7. The applicant shall directly hire, or pay permit inspection fees to provide for periodic inspection of the mining area by an appropriately licensed engineer and/or hydrologist.
8. Periodic inspections shall be made as determined by the engineer and/or hydrologist, sufficient to monitor the operation. Such periodic inspections shall include visits during or after high water events.
9. Inspection reports shall be submitted to the Engineering Department for each 10,000 cubic yards of material removed from the stream, and those reports shall include the following information:
10. An inspection report shall be submitted at the end of the mining season which includes all items in above numbers 3 and 7. The report shall be submitted to the Engineering Department within one month of the end of the mining season, or April 15.
11. The applicant/operator shall confine all excavations to within existing rip-rap banks. Prior to proceeding with annual excavations, the applicant must find and stake adjacent rip-rap banks.
12. The applicant/operator shall protect the structural integrity of existing stream banks and rip-rap banks. A no-disturbance zone of at least 10 feet horizontal distance from adjacent rip-rap and banks is required. (This condition is necessary because rip-rap boundaries may or may not correlate with property boundaries, as noted in the earlier requirement to mine 10 feet from property boundaries.)
13. The applicant shall protect all vegetated slopes and maintain a similar non-disturbance zone identified above, unless a site-specific engineering analysis indicates otherwise.
14. All cut-slopes shall be less than 2 horizontal to 1 vertical unless a site-specific engineering analysis proves that a steeper slope protects adjacent properties.
15. Truck traffic from the development shall be routed only through the Anka Street/Glacier Highway intersection.
16. [NEW] Truck traffic and heavy equipment operation associated with gravel extraction is strictly prohibited from the Davis Avenue side of the river.
17. Operating hours shall be 7 a.m. to 6 p.m. on weekdays and 9 a.m. to 6 p.m. on Saturdays. Operations shall not be allowed on Sundays.
18. Excavated areas within the creek bed must be clearly marked with warning signs. Excavated slopes must be graded to a gentle slope of 4 horizontal to 1 vertical before signs are removed. These measures shall be integrated into the annual grading permit.
19. [NEW] Gravel extraction shall be limited to 40 days per year.
20. [NEW] The permit shall expire after 5 years or after 200,000 cubic yards of gravel has been extracted, whichever comes first.
21. [NEW] Any gravel extraction outside of the project description and supporting documents shall require Planning Commission approval for modification of the permit.
22. [NEW] One month prior to the start of the mining season, the applicant shall submit an engineered project design for the access road. Design shall include topographic features and an analysis by a licensed hydraulic engineer which demonstrates that the road design and culverts are adequate and the road will not increase the base flood elevation in violation of CBJ Flood Hazard and FEMA regulations. The applicant may also propose an alternative method to transport gravel out of the riverbed to the road such as a conveyor system, or clear span bridge, at that time. The design and analysis shall be approved by CBJ Engineering before mining or construction commences.
23. [NEW] The even/odd year plan for gravel extraction, as described in the December 28, 2006 DNR-Habitat Draft Title 41 Permit and the June 15, 2007 letter to CDD from NMFS’, shall be integrated into the project description and development plan and implemented through the annual grading permit issued by CBJ.
24. [NEW] If the final approved temporary access road from Lemon Creek to Ralph’s Way cannot comply with the permit conditions for the truck scale approved under VAR2007-00010, no grading permits shall be issued until the truck scale project has been revised and a new variance has been approved by the Planning Commission. Alternatively the truck scale may be removed from the site.
25. [NEW and REVISED]. Gravel operations shall take place between December 1 and March 15. No in-water work shall be allowed between March 16 and November 30 with the following exception:
In-stream work to connect the excavated sections of the creek shall be allowed for one 7 day period between May 15 and June 15. The applicant shall provide notice to CBJ Engineering and DNR-Habitat before work commences.