Location of Building and the Water

As you can see in this illustration, the proposed office/retail building is located in three water-related zones (1) the Floodplain to 88.2 feet (2) two Army Corps Flowage Easements (83.7 and 90.7 feet) and (3) below the Ordinary High Water Mark 80.65 feet.


The proposed building location does not just have “zero” setback (a buffer of land between a building and the water) but is actually in the water–like a pier. Setbacks are important along rivers to protect water quality and to protect public safety and private property by moving structures away from areas likely to flood. Setbacks have been standard practice for cities across the country for decades. The “safe harbor” setback in Oregon is 75 feet. The City of Hood River went through a special process in order to get “zero setback” for this reach of the river. While the city doesn’t require a defined setback for the Naitos property, they do have “natural features” preservation and floodplain criteria which should have been used to address the same issue.

Here are details on each water-related zone:

Floodplain. Every year we see images on TV of rivers flooding and homes and buildings destroyed. It’s not very hard to

understand why buildings shouldn’t be located in known flood plains. Building in a floodplain becomes a risk and expense that we all end up bearing through the costs of protection during flood events, cleanup afterward and increased insurance rates. FEMA uses the “100-year floodplain” in determining special flood hazard areas—it is 88.2 feet at this site. The term “100 year floodplain” can cause people to underestimate the risk involved. According to FEMA, in the course of a 30-year mortgage, there is a 26% chance that a property in the 100-year floodplain will experience a flood.  In the event of a 100 year flood, the office/retail building would be completely surrounded by water. Is this responsible development? Or should the buildings and road be moved up the bank, away from the river and onto higher ground? Along with flooding risks, the risk of soil liquefaction is much higher in floodplains. There are also environmental and habitat implications. The Oregon Department of Fish and Wildlife sent a letter to the City advising that the building “should be permitted a more respectable distance out of the 100 year flood plain” to protect water quality for fish at the Basin as well as public safety. The city should have carefully analyzed all of the risks before approving the site plan.

Flowage Easement. There are two “flowage easements” on the property which allow the Army Corps to flood the property as part of dam operations. One easement was purchased when the dam was built in 1938 and allows flooding the land to 90.7 feet. Then in 1974, the Corps purchased a more restrictive easement to 83.7 feet that forbids dwellings and requires Corps approval for any structure or fill in the easement whatsoever. The retail/office building is located entirely within the 83.7 foot flowage easement. The Naitos made the same request in 2011 and the Corps denied it. The Real Estate Division of the Corps is in the process of gathering materials and conducting environmental reviews for the application. The Corps requires that there is “no practical alternative to location of the structure in the flowage easement” before they grant the request to build. The Naitos will need to show that they can’t locate their building on the land above 83.7 feet. The Corps will also analyze the environmental effects of the proposal and whether it would constrain their flexibility in floodplain management in the future. There will be a public comment period on the proposal. We believe the building would be better located above the flowage easement. Additionally, the Naitos would be on a much faster track towards construction, as the Corps process is notoriously slow. If they build outside the flowage easement, they do not need Corps approval for the project. It is certainly possible to craft a viable site plan that does not involve building in the flowage easement as the Naitos themselves demonstrated in their 2008 condo plan for the property (the 2008 plan had city approval and no local opposition but fell through when the housing market crashed).

“Ordinary High Water” Under State and Federal regulations, “Ordinary High Water” or “OHW” is where the water starts. “OHW” is the mark the water reaches on a regular enough basis for long enough to create physical changes along the shore like obvious marks on the bank, erosion of plant roots and wracking up of debris. At this site, OHW is the level the water reaches during spring runoff every May and June. The Naitos have said that they will not build below OHW. That is correct. The US Army Corps of Engineers only permit “water dependent” structures to be located in the water. “Water-dependent” means that the building must be located in the water to achieve its purpose—things like boat ramps or docks. The Naito office/retail building does not fit that definition. The site plan approved by the city would not be permitted by the Corps because one-third of the building is below the Corps’ established OHW of 80.65 feet. The Corps will require the building to be moved up the bank and out of the water. The Naitos have responded to this problem by reducing the depth of the building and also by “moving the water” by asking for a new, lower OHW of 79.3 feet. We are skeptical of the scientific basis of the Naitos proposed OHW. OHW is determined by field surveys, dam and gage data, and hydrologic modeling. Ultimately, the Corps will be required to make their jurisdictional determinations based on good, defensible scientific data.