HomeMy Public PortalAbout2004 Idaho Department of Lands- Encroachment Permit L-65-S-114DIDAHO DEPARTMENT OF LANDS
June 9, 2004
City of McCall
Attention: Robert Strope, City Manager
216 East Park
McCall, ID 83638
Re: City of McCall - Encroachment L-65-S-114D
Dear Mr. Strope,
954 W. Jefferson St., PO Box 83720
Boise, Idaho 83720-0050
Phone (208) 334-0200 Fax (208) 334-2339
WINSTON WIGGINS - DIRECTOR
As the designee of the Idaho Department of Lands Director, Mr. Winston Wiggins, I have
reviewed the Findings of Fact and Conclusions of Law prepared by Mr. Michael Murphy in
conjunction with processing the City of McCall's encroachment permit application and
following the public hearing held on May 10, 2004.
It is my decision that the subject encroachment permit, L-65-S-114D, be issued to the City
of McCall.
If you have questions, please contact me at (208) 334-0261. For your reference, any
questions or comments regarding public access, parking, trespass and the use and
disposition of the property will be referred to the City of McCall.
Sincerely,
Scott H. Nichols
Bureau Chief
Bureau of Surface and Mineral Resources
Enclosures: Hearing Officer's Findings of Fact - June 2, 2004
CC: Sheldon Keafer, Area Supervisor
Idaho Fish and Game
KEEP IDAHO GREEN
PREVENT WILDFIRE
EQUAL OPPORTUNITY EMPLOYER
JUN 1 0 2004
1
BOARD OF LAND
COMMISSIONERS
DIRK KEMPTHORNE
Governor
BEN YSURSA
Secretary of State
LAWRENCE G. WASDEN
Attorney General
KEITH L. JOHNSON
State Controller
MARILYN HOWARD
Sup't of Public
Instruction
J
Bureau of Surface and Mineral Resources
954 West Jefferson Street
Box 83720, Boise, Idaho 83720-0050
(208) 334-0251
fax (208) 334-3698
Winston A. Wiggins, Director
June 9, 2004
MEMORANDUM
TO: Scott Nichols
FROM: Mike Murphy
SUBJECT: Brown Park/City of McCall Encroachment Permit
FINDINGS OF FACT/CONCLUSIONS OF LAW
Public Hearing — May 10, 2004
Encroachment Permit #L-65-S-114D
Applicant: City of McCall
Application: Encroachment Permit - Brown Park, McCall Idaho
Hearing Officer: Michael Murphy — Idaho Depai tiiient of Lands
Findings of Fact
1. The City of McCall (applicant) is the owner of real property, identified as Brown Park,
Lot 1, Section 9, T19N R3E, B.M., Valley County, State of Idaho. Brown Park is
adjacent to Payette Lake and provides the City of McCall with approximately 500 feet of
lake frontage.
2. On August 4, 2003, the City of McCall made application to the Idaho Department of
Lands (IDL) for an encroachment permit, which included a floating dock with thirteen
boat tie-ups and attached fish pens. The encroachment was to be constructed on Brown
Park frontage, located on Payette Lake, just east of the downtown district of McCall.
City of McCall Encroachment Permit
June 9, 2004
Page 2 of 5
3. A decision on the part of the City of McCall to change the location of the proposed
encroachment on Brown Park frontage prompted a second application made to IDL on
December 11, 2003.
4. On December 17, 2003, IDL notified governmental entities of the proposed encroachment
in the changed location. Specifically, the Idaho Department of Fish and Game, the Idaho
Department of Environmental Quality, the U.S. Army Corps of Engineers, the Idaho
Department of Water Resources, Valley County Planning and Zoning, Central Health
District, and the Big Payette Lake Water Quality Council were asked to comment on the
likely effect of the proposed encroachment upon adjacent property, lake and streambed
values of navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty or
water quality.
5. None of the agencies who were notified provided IDL with verbal or written objections to
the proposed encroachment. The Army Corps of Engineers submitted a letter dated
January 23, 2004 to the City of McCall indicating that the proposed project requiring the
discharge of three cubic yards of concrete into Payette Lake was authorized and did not
offer any objection to the proposed encroachment.
6. An encroachment permit for a floating dock with thirteen boat tie-ups and attached fish
pens was subsequently issued to the City of McCall (#L-65-S-114D) on January 9, 2004
for the changed location.
7. In early April 2004, IDL became aware that the processing of the encroachment permit
was not in compliance with Title 58 Chapter 13 of the Idaho Code (the Lake Protection
Act) because notice had not been published in the newspaper. To correct the procedural
error, IDL published notice of the encroachment application and notice that a public
hearing would be held on May 10, 2004 at 7:00 pm in the McCall Resource Complex
(555 Deinhard Lane, McCall). Notification of the public hearing was published in the
McCall Star News on April 22, 2004 and April 29, 2004. Mr. Mike Murphy, IDL
Program Manager for Navigable Waters and Cottage Site Leasing was designated to be
the public hearing officer.
8. On April 14, 2004, IDL submitted a letter to the City of McCall (Lindley S. Kirkpatrick —
Community Development Director) indicating that the City of McCall should cease all
construction activities associated with the encroachment until the permitting issue could
be resolved.
City of McCall Encroachment Permit
June 9, 2004
Page 3 of 5
9. On May 10, 2004, a public hearing was held and testimony, both written and oral, was
presented to Mr. Mike Murphy, the hearing officer. An audio recording of the meeting
was taken and subsequently transcribed. Attendees of the meeting included IDL
representatives, City of McCall representatives, Mr. Dale Allen of the Idaho Department
of Fish and Game, and approximately 15 members of the public.
10. Objections to the proposed encroachment, presented during the hearing, are categorized
as use and zoning issues or lake values of navigation, fish and wildlife habitat, aquatic
life, recreation, aesthetic beauty or water quality as follows:
Lake Values
increased boat traffic associated with the proposed dock
safety issues related to swimmers on the adjacent private beach front
negative visual impact of the encroachment on privately owned uplands
Use and Zoning Issues
- increased trespassing onto private land adjacent to the park
increased use of the upland public city park
- existence of other viable locations within Brown Park
negative property value impact on privately owned uplands
proposed dock and pens drastically change the use of the park
increase of contamination and nutrients to Payette Lake
lack of parking for additional park users
- deed restriction which limits the city's development of the park
11. Mr. Dale Allen of the Idaho Department of Fish and Game provided testimony in favor of
the proposed encroachment and indicated that the proposed activity would not have an
adverse impact on water quality. Mr. Allen also indicated that the proposed location
within Brown Park was better due to the depth of the water at the east end of the park and
that better fish growth would take place in the proposed location. Finally, he cited public
interest and support for the rearing pens.
12. The City of McCall provided public testimony in support of the project citing the City's
desire to have additional boat access and establish another recreational activity in that
area of the park
13. IDL has observed that the houses are located higher than the proposed encroachment.
14. Any finding of fact deemed to be a conclusion of law is hereby adopted as such; any
conclusion of law deemed as a finding of fact is similarly adopted as such.
City of McCall Encroachment Permit
June 9, 2004
Page 4 of 5
Conclusions of Law
1. The Idaho Board of Land Commissioners (Board) is designated in Idaho Code § 58-
104(g) and § 58-1303 to regulate, control and permit encroachments on, in or above the
beds of navigable lakes in the state of Idaho. IDL is the administrative agency of the
Board. Idaho Code § 58-119.
2. Payette Lake is a navigable lake as defined by Idaho Code § 58-1302(a). Therefore
encroachments of any kind on, in or above the beds of Payette Lake require an
encroachment permit prior to any encroachment on the lake.
3. Pursuant to Idaho Code § 58-1301, lake encroachments must be regulated to protect
property, navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty
and water quality. These factors must be given due consideration and weighed against
the navigational or economic necessity or justification for, or benefit to be derived from
the proposed encroachment.
4. The City of McCall is the owner of real property contiguous to Payette Lake, and is
therefore eligible to make application for an encroachment permit. See Idaho Code § 58-
1302(f). The application was complete and accepted for processing by IDL in accordance
with its rules.
5. The application was processed pursuant to Idaho Code § 58-1306. The applicant and IDL
satisfied all procedural requirements in the processing of the application.
6. Pursuant to the Lake Protection Act, the Department weighs lake values against the
benefits to be derived from the proposed encroachment. The Lake Protection Act does
not provide legal authority for the IDL to regulate upland property uses or address local
zoning issues, such as land use, increased park activity, parking, or trespassing.
7. In this case, the lake values of property protection, navigation, fish and wildlife habitat,
aquatic life, recreation, aesthetic beauty and water quality were weighed against the
public recreational benefit of thirteen public boat cleat tie-ups and the public viewing of
fish in the fish pens.
8. IDL has determined that an encroachment permit should be issued under provisions of the
Lake Protection Act and the associated IDAPA Rules (20.03.04). No agency expressed
navigational or safety concerns because of increased boat traffic. The Idaho Department
of Fish and Game (IDFG) indicated that the encroachment and fish pens would not
City of McCall Encroachment Permit
June 9, 2004
Page 5 of 5
adversely affect fish and wildlife habitat, aquatic life or water quality. The IDFG
indicated that there was no measurable negative impact to water quality from the use of
previously operated fish pens. The IDFG also stated at the public hearing that the site of
the proposed encroachment and fish pens was made based on the best location for fish
growth.
9. Potential adverse visual impacts to private upland property are mitigated by the fact that
nearby residences are located topographically higher than the proposed encroachment.
The lake views from nearby residences will not be blocked by the encroachment.
10. Any finding of fact deemed to be a conclusion of law is hereby adopted as such; any
conclusion of law deemed as a finding of fact is.
Recommendation
IDL relies heavily on the other state agencies, especially the Idaho Department of Fish and Game
and the Idaho Department of Environmental Quality to provide technical assistance and
comments related to proposed encroachments. None of the state agencies contacted provided
objections to the proposed encroachment. The information provided by the Idaho Department of
Fish and Game at the pubic hearing on May 10, 2004 indicated no measurable negative impact to
water quality from the use of the previously operated fish pens and did not anticipate a negative
impact from the use of the proposed fish pens.
Although the issues of increased boat traffic, potential visual impacts and potential safety
concerns were given due consideration, it does not appear that they outweigh the public benefit to
be derived from this encroachment.
Based on the information provided to me as the hearing officer and based upon the fact that the
permit application meets all of the requirements of the Lake Protection Act, IDAPA 20.03.04,
and IDL Policies and Procedures (including proper notification and the subsequent holding of a
public hearing), I recommend that the Idaho Department of Lands approve the encroachment
permit application submitted by the City of McCall (#L-65-S-114D).
Respectfully submitted,
r
Michael . urphy — Hearing Officer
Idaho Department of Lands Program Manager
PAYETTE LAKES
SUPERVISORY AREA
555 Deinhard Lane
McCall ID 83638
Phone (208) 634-7125
Fax (208) 634-5117
WINSTON A WIGGINS, DIRECTOR
EQUAL OPPORTUMTY EMPLOYER
STATE BOARD OF LAND COMMISSIONERS
Dirk Kempthorne, Govemor
Ben Ysursa, Secretary of State
Lawrence G. Wasden, Attorney General
Keith L. Johnson, State Controller
Marilyn Howard, Sup't of Public Instruction
WORK/RECORDATION COMPLETION REPORT
NAME: CITY OF McCALL
Address: 216 East Park Street
McCall, ID. 83638
This work to be completed by: January 9, 2007
Date Permit Issued: January 9, 2004
Date Work Completed:
Owner/Contractor
Upon completion of work, please return this report to:
Idaho Department of Lands
Payette Lakes Area Office
555 Deinhard Lane
McCall, ID 83638
Inspected and Verified By:
Date:
COMMENTS:
PERMIT #: L-65-S-114D
PAYETTE LAKES
SUPERVISORY AREA
555 Deinhard Lane
McCall ID 83638
Phone (208) 634-7125
Fax (208) 634-5117
WINSTON A WIGGINS, DIRECTOR
EQUAL OPPORTUNTY EMPLOYER
STATE BOARD OF LAND COMMISSIONERS
Dirk Kempthome, Governor
Ben Ysursa, Secretary of State
Lawrence G. Wasden, Attomey General
Keith L. Johnson, State Controller
Marilyn Howard, Sup't of Public Instruction
ENCROACHMENT PERMIT NO. L-65-S-114D
Permission is hereby granted to CITY OF McCALL of 216 E. Park Street, McCall, ID
83638 to construct and maintain T-Shaped dock with two fish net pens attached to be
located as follows: Mill Park, Govt Lot 1, Section 9, Township 19 North, Range 3 East,
Boise Meridian, Valley County.
1. All applicable provisions of the Rules of Regulation of Beds, Water, and Airspace
over Navigable Lakes and Streams in the State of Idaho are incorporated herein
by reference and made a part hereof.
2. Construction will follow details and specifications shown on the approved
drawings, and made a part hereof, together with any special conditions,
procedures, or endorsements required by the department appearing below.
3. This permit does not convey the State's title to or jurisdiction or management of
lands lying below the natural or ordinary high water mark.
4. Acceptance of this permit constitutes permission by the Permittee for
representatives of the Department of Lands to come upon Permittee's lands at all
reasonable times to inspect the encroachment authorized by this permit.
5. The Permittee assumes all liability for damages, which may result from the
exercise of this permit.
6. This permit does not relieve the Permittee from obtaining additional local or
federal permits as required.
7 This permit is not valid until the number assigned is displayed in letters not
less than three inches (3") in size upon the dock or piling.
8. ff the activity authorized herein is not completed on or before the 9th day of
January, 2007 (three years from the date of issuance), this permit shall
automatically expire unless it was previously revoked or otherwise
extended.
9. White bead foam flotation shall be completely encased in a manner that will
maintain the structural integrity of the foam. The encasement shall be resistant
to the entry of rodents.
10. Removal of any pre-existing dock facilities is a condition of this permit unless
otherwise mentioned in this permit as being able to remain.
ENCROACHMENT PERMIT
NO. L-65-S-114D
Page 2
11. This permit supersedes and voids any dock permit previously issued for this
property. This permit is contingent upon removing any abandoned portions of
the existing dock from Payette Lake.
12. Construction materials shall be natural or pressure treated utilizing only those
preservative chemicals registered for their specific uses, but he U.S.
Environmental Protection Agency (DPA). All treated wood materials shall be
produced in compliance with "Best Management Practices (BMPs) for the Use of
Treated Wood in Aquatic Environments" issued by the Western Wood Preservers
Institute (WWPI), July 1996. Treated materials not in contact with the water shall
be completely dry before use near navigable waters. Contact Idaho Department
of Environmental Quality for information on acceptable treatment methods and
materials.
13. All Water Resource laws must be in compliance.
14. Should information and data provided prove to be materially false, incomplete
and/or inaccurate, this authorization may be modified, suspended, or revoked
upon notice by the Director of Department of Lands and hearing as provided for
in the adopted rules.
15. All construction waste, i.e., wood chips, must be removed from the lake as soon
as possible.
16. As a condition of this permit, the director may require a lease or easement for
use of any part of the state-owned lakebed.
17. The Permittee shall maintain the structure or work authorized herein in a good
and safe condition and in accordance with the plans and drawings attached
hereto.
18. All construction shall be completed in accordance with descriptions and methods
provided unless otherwise specified. Any changes shall be approved in writing
by the department prior to construction.
19. This permit is not valid until it has been recorded with the County.
FOR THE DJ ECTOR
r r
By: 7� t( • J�
SHELDON W. KEAFER (Area Supervisor)
STATE OF IDAHO
) ss
COUNTY OF VALLEY
Subscribed and sworn to before me this 9 January, 2004 .
Date: January 9, 2004
•• e
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41
Nota Putllic of Pdab''},••••.•.�• * `••
Residing at McCall
•.••
Commission expires: ''p6''•
JOINT APPLICATION FOR PERMIT
U.S. ARMY CORPS OF ENGINEERS
IDAHO DEPARTMENT OF WATER RESOURCES
IDAHO DEPARTMENT OF LANDS
SEPARATE PERMIT DECISIONS MUST BE
RECEIVED FROM BOTH THE STATE OF
IDAHO AND THE CORPS OE -ENGINEERS
PRIOR TO START OF WORK
ne Department of the Army permit program is authorized by Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the CleanrWsitx AEI These laws
quire permits authorizing structures and work in or affecting navigable waters of the United States and the discharge of dredged or fill material into waters of the
nited States, including their adjacent wetlands. State permits are required under the State of Idaho, Stream Channel Protection Act (Title 42. Chapter 36. Idaho Code
id the Idaho Lake Protection Act. Section 58-142 et seq, Idaho Code. This application will meet the -requirements of the above agencies.
Corps of Engineers #
Date Received
3. Applicant
Mailing Address
5 7'
2. State of Idaho >Y
Date Received
-.S20 Rec'd By:
PLEASE Tin OR PRINT
Authorized Agent
Mailing Address
Area ? / 6 Home Area - // 3 7
Work Phone (?�`l) � � �/ ( ) � -�`�
Fax Number d 0 LP L' 3 Y 3 91'
5. Location where proposed activity exists or will occur.
Waterway � � ) 4
C.// G/J/ley
In/near city or town County
/i
State
Ltp Lode Local junsdtcuon (city or county)
- Receipt e
lDar/c Sr
/11(,(:../l /t) 36y8
Area ,
Work Phone (; ) /') `*- • 716 ! Horne (2) Cv . `� //?
- -Tributary oft , /" �',� fin /C 5--
Assessor's,,pe�sscc.. (Tax No. or Subdivision. Lotle Block No.)
*In ill Mee c'n I-3cy e i% L Ke) Gr ilri % •(See instructions)
Jrcac. ! i (s- /-A ' fi.'i_tivt e�v1') r/R1E11:7 or
1/4 1/4 Section Township Range
VIM Coordinate Grid
ne Nortnmg basting
6. Describe the proposed activity. Provide a general description of the proposed work including all discharges of fill material and any structures such as piers, floats
boat lifts, bulk _.
heads, and cofferdams. ..-- - 4 S lie//e r X C. tOt 7" tr//r<i, L,.,5f
(,'.z t. /}) t<.�,< ( Gam, / /. �e 1
120/ e L✓, /5- /)e'lV Gl 44e-11 Ir J "r/r ci S c-
Describe construction methods and equipment
<i15 //4.7% >', �- 7/3C!/cz•,•t -f 9/� %�lc' 7‘;7-<i.L4,/ cis
5/4 /47'.-)h
D X / S�:^U.�.� CjOC/C.
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rat�"ie.-C TV: Lgci./16iG/�"�/it. /�2:MP.S U
i a
p /4/),A) flcirt"!54/�r0'
List all soil series located at project site. and indicate if any are on the corn ty's hydric soils list 2e , , •
i,/f) /ci/ ,74✓.j
Gvt// /v15:r
Length of project along the stream or extension into lake or reservoir. o � `' /l t/pef -
Will material be placed waterward of ordinary high water manic? !v n
Wili material be placed in wetlands? /V) if yes, total area:
If yes, volume: 0
- (BOTH TEMPORARY AND PERMANENT)
(acres)
(cubic yards)
Type and composition of fill material: 4/1// (Lc sand, etc) Material Source:
Will excavation or dredging be required? /t/%) if yes. volume: (cubic yards) Composition
Disposal site for excavated material: Jt//4 - Method of excavation:
Stream gradient
/ I/A
Method of controlling turbidity and/or sedimentation:
cr,
7. Size and flow capacity of proposed bridge or culvert and area of drainage served (sq. miles): (Idaho Department of Water Resources requirement)
Preparation of drawings. One set of original or good quality reproducible drawings roust be anacncd to this application. NU"it: URA%!Nw t,Attutme
THAN 8-i/2 X II INCHES IN SIZE. See the imstruaion pamphlet for instructions and a checklist for completing the drawings. Include photographs of the project
site mounted on 8-1I2 x 11 sheeu.
Purpose and intended use: Commercial Public /` Private Other Describe
for project ReloC d C d e r«12
,%j 5 i.� � X e,eP e ,- Est ed Duration • - J
Proposed Stoning Date ✓•n P � O J �[ j � y w t %/ G[ •: c, /
If arty portion of the activity is complete, indicate month and year of completion" (" O I/ -
Indicate the existing wort: on the drawings.
Names, addresses, and telephone numbers of adjoining properly owners, lessees, ere., whose ptopeny also adjoins the waterway.
SeutC,,� 80-4•,clip MC (c'../indielkk-a 744/4. ) ecx /O4iZ� rl1c(;ct/) /0,
Nc.44 /b:%i //a, /elci,[%-ti- biz Et r.s"/ S'SI �vr,.c/�,�e D=f,: "c/ KC.•+�t /elI C4 7,1'70J
--
Necessity and justification
❑ Check here if the alteration is located on endowment lands administered by the Idaho Department of Lands
krt2C (/SC'.
i
. LEGAL OWNER IF
OTHER THAN APPLICANT
- — - - City. Sore.
Mailing Address Zip Code
Area
Phone _. Work(____) liomog6.---)
. List other applications, approvals, or cadfications from other Federal, -intasdte, state, or local agencies for any sauaures, constructions, discharges, deposits, or
other aaivites described in the application. -- - -
Issuing Agency Type of Approval ldemificatmn No. Date of Application Date of Approval
i. Has any agency denied approval for the activity described herein or for any activity directly related to the activity described herein? Yes No
(If 'Yes" explain) . — . .. - _ —
i. Remarks or additional information:
PHYSICAL ADDRESS (re a i red by ID DPp} of TAnd , j -
7. Application is hereby made for a permit or permits to authorize the activities described herein, i certify that I am familiar with the information contained in this
application, and that to the best of my Imowiedge and belie-4 such information is true, complete, and accurate. I further certify that I possess the authority to under
take the proposed activities. I hereby grant to the agencies to which this applicaition is !Wade. the right to come upon the above -described location to inspect the
proposed or completed work.
/9.-////0.3
Date Signature of Applicant (ORIGINAL SIGNATURE REQUIRED)
4. if an authorized agent is to be designated, Item 4 and the following information should be completed.
I hereby designate to as as my agent in matters related to this permit application. I understand that if a Federal permit
is issued, I must sign the permit.
Date Original Signature of Authorized Agent -- - -
- " Original Signature of Applicant
18 USX. Section 1001 provides that Whoever, in any mama within the jurisdiction of any depazonent or agency of the United States knowingly falsifies.
conceals, m towers up by any trick. scheme. or device a arterial faux or makes soy fake, fiaitious. or fraudulent statements or representations or rakes or uses any
fahe writiing o% 16uamteot knowing sane to contain any false, fictitious. or banthdent sit of ertry, shall be fined not more than S10,000 or imprisoned not
mare than 3 years or both. Do not sent a Federal permit processing fee with this application. n. The appropriate fee will be assessed when a permit is issued.
DO NOT SEND FEDERAL PROCESSING FEE WiTH APPLICATION
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