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DEPARTMENT OF STATE LANDS




 


DIVISION 85
ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT OF

REMOVAL-FILL AUTHORIZATIONS WITHIN WATERS OF OREGON INCLUDING WETLANDS

General
141-085-0500
General
Where headings, special fonts or double-spacing are used, they are for the convenience of the user only and have no substantive effect.
Stat. Auth.: ORS 196.825 & 196.600 - 196.692

Stats. Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
Policy
141-085-0506
Policy
(1) General Policy on Removal-Fill. No authorization to place fill or remove material from the waters of this state may:
(a) Interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation uses; or
(b) Be inconsistent with the protection, preservation and best use of the water resources of this state.
(2) Department Will Use Fair, Predictable Approach. To the extent possible, the Department will administer these rules to ensure persons receive timely, fair, consistent and predictable treatment including timely communication and consistent application and interpretation of these rules and the Removal-Fill Law.
(3) Department Will Continually Improve the Program. The Department will actively and continually pursue improvements to the authorization process in order to reduce paperwork, eliminate duplication, increase certainty and timeliness, and enhance protection of water resources.
(4) Department Will Recognize Multiple Interests. The Department will recognize the interests of adjacent landowners; tribal governments; public interest groups; soil and water conservation districts; drainage, irrigation and diking districts; watershed councils; state and federal agencies; and local government land use planning agencies.
(5) Department’s General Policies on Wetland Regulation. In regard to the regulation of wetlands, the Department will administer these rules to ensure that:
(a) The protection, conservation and best use of this state’s wetland resources, including their functions and values, are promoted through the integration and coordination of the local comprehensive plans and the Department permitting process; and
(b) A stable wetland resource base is maintained through avoidance of reasonably expected adverse impacts, and by compensating for unavoidable wetland impacts.
(6) Restoration and Conservation Programs. The Department will encourage and facilitate the restoration of waters of this state through voluntary restoration and conservation programs.
(7) Compensatory Mitigation. Through its permitting and enforcement programs, the Department will seek to offset losses of the functions and values of the water resources of this state.
(8) Mitigation Banks. The Department will allow the use of mitigation banks to offset adverse effects from removal or fill activities to the waters of this state.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
Definitions
141-085-0510
Definitions
The following definitions are used in
addition to those in ORS 196.600 to 196.990.
(1) “Applicant”
means a landowner, a person authorized by a landowner to conduct a removal or fill
activity, or a person that proposes a removal or fill activity for construction
or maintenance of a linear facility.
(2) "Aquatic Life and Habitats"
means the aquatic environment including all fish, wildlife, amphibians, plants and
other biota dependent upon environments created and supported by the waters of this
state. Aquatic life includes communities and species populations that are adapted
to aquatic habitats for at least a portion of their life.
(3) “Artificial Means”
means the purposeful movement or placement of material by humans and/or their machines.
(4) “Authorization”
means an individual permit, general authorization, general permit or emergency authorization.
(5) "Bankfull Stage" means
the two-year recurrence interval flood elevation.
(6) “Baseline Conditions”
means the ecological conditions, wetland functions and values and the soils and
hydrological characteristics present at a site before any change by the applicant
is made.
(7) "Basin" means one of
the eighteen (18) Oregon drainage basins identified by the Oregon Water Resources
Department as shown on maps published by that agency.
(8) "Beds" means:
(a) For the purpose of OAR
141-089, the land within the wet perimeter and any adjacent non-vegetated dry gravel
bar; and
(b) For all other purposes,
"beds" means that portion of a waterway that carries water when water is present.
(9) "Beds or Banks" means
the physical container of the waters of this state, bounded on freshwater bodies
by the ordinary high water line or bankfull stage, and in tidal bays and estuaries
by the limits of the highest measured tide. The “bed” is typically the
horizontal section and includes non-vegetated gravel bars. The “bank”
is typically the vertical portion.
(10) "Buffer" means an upland
or wetland area immediately adjacent to or surrounding a wetland or other water
that is set aside to protect the wetland or other waters from conflicting adjacent
land uses and to support ecological functions.
(11) “Channel”
means a natural (perennial or intermittent stream) or human made (e.g., drainage
ditch) waterway that periodically or continuously contains moving water and has
a defined bed and bank that serve to confine the water.
(12) “Channel Relocation”
means a change in location of a channel in which a new channel is dug and the flow
is diverted from the old channel into the new channel.
(13) “Coastal Zone”
means the area lying between the Washington border on the north to the California
border on the south, bounded on the west by the extent of this state’s jurisdiction
as recognized by federal law, and the east by the crest of the coastal mountain
range, excepting:
(a) The Umpqua River basin,
where the coastal zone extends to Scottsburg;
(b) The Rogue River basin,
where the coastal zone extends to Agness; and
(c) The Columbia River basin,
where the coastal zone extends to the downstream end of Puget Island.
(14) "Coastal Zone Certification
Statement" means a signed statement by the applicant or an authorized agent indicating
that the proposed project will be undertaken in a manner consistent with the applicable
enforceable policies of the Oregon Coastal Management Program.
(15) "Commercial Operator"
means any person undertaking a project having financial profit as a goal.
(16) “Compensatory
Mitigation” means activities conducted by a permittee or third party to create,
restore, enhance or preserve the functions and values of the waters of this state
to compensate for the removal-fill related adverse impacts of project development
to waters of this state or to resolve violations of ORS 196.600 to 196.905. Compensatory
mitigation for removal-fill activities does not affect permit requirements of other
state departments.
(17) “Compensatory
Non-Wetland Mitigation (CNWM)" means activities conducted by a permittee or third
party to replace non-wetland water functions and values through enhancement, creation,
restoration or preservation to compensate for the adverse effects of project development
or to resolve violations of ORS 196.600 to 196.905.
(18) “Compensatory
Wetland Mitigation (CWM)” means activities conducted by a permittee or third
party to create, restore or enhance wetland and tidal waters functions and values
through enhancement, creation, restoration or preservation to compensate for the
adverse effects of project development or to resolve violations of ORS 196.600 to
196.905.
(19) "Comprehensive Plan"
means a generalized, coordinated land use map and associated regulations and ordinances
of the governing body of a local government.
(20) “Condition”
refers to the state of a water's naturalness or ecological integrity.
(21) “Converted Wetlands”
means agriculturally managed wetlands that, on or before June 30, 1989, were brought
into commercial agricultural production by diking, draining, leveling, filling or
any similar hydrologic manipulation and by removal or manipulation of natural vegetation,
and that are managed for commercial agricultural purposes. “Converted wetlands”
does not include any stream, slough, ditched creek, spring, lake or any other waters
of this state that are located within or adjacent to a converted wetland area.
(22) “Cowardin”
means Cowardin, L. M., V. Carter, F. C. Golet, E. T. LaRoe. 1979. Classification
of wetlands and deepwater habitats of the United States, U. S. Department of the
Interior, Fish and Wildlife Service, Washington, D.C.
(23) “Credit”
means the measure of the increase in the functions and values of the water resources
of this state achieved at a mitigation site.
(24) "Day of Violation" means
the first day and each day thereafter on which there is a failure to comply with
any provision of the Removal-Fill Law, ORS 196.600 through 196.990, or rules adopted
by the Department, or any order or authorization issued by the Department.
(25) “Deep Ripping,
Tiling and Moling” refers to certain specific mechanical methods used to promote
subsurface drainage of agricultural wetlands.
(26) "Degraded Wetland”
refers to a wetland in poor condition with diminished functions and values resulting
from hydrologic manipulation (such as diking, draining and filling) and other disturbance
factors that demonstrably interfere with the normal functioning of wetland processes.
(27) “Department”
means the Oregon Department of State Lands and the Director or designee.
(28) “Ditch”
means a manmade water conveyance channel. Channels that are manipulated streams
are not considered ditches.
(29) "Dredging" means removal
of bed material using other than hand-held tools.
(30) “Ecologically
or Environmentally Preferable” means compensatory mitigation that has a higher
likelihood of replacing functions and values or improving water resources of this
state.
(31) "Emergency" means natural
or human-caused circumstances that pose an immediate threat to public health, safety
or substantial property including crop or farmland.
(32) “Enhancement"
means to improve the condition and increase the functions and values of an existing
degraded wetland or other water of this state.
(33) “Erosion-Flood
Repair” means the placement of riprap or any other work necessary to protect
existing facilities and land from flood and high stream flows, in accordance with
these regulations.
(34) “Essential Indigenous
Anadromous Salmonid Habitat (ESH)” means the streams designated pursuant to
ORS 196.810 that are necessary to prevent the depletion of indigenous anadromous
salmonid species during their life history stages of spawning and rearing, and any
adjacent off-channel rearing or high-flow refugia habitat with a permanent or seasonal
surface water connection to an ESH stream.
(35) "Estuary" means:
(a) For waters other than
the Columbia River, the body of water from the ocean to the head of tidewater that
is partially enclosed by land and within which salt water is usually diluted by
fresh water from the land, including all associated estuarine waters, tidelands,
tidal marshes and submerged lands; and
(b) For the Columbia River,
all waters from the mouth of the river up to the western edge of Puget Island, including
all associated estuarine waters, tidelands, tidal marshes and submerged lands.
(36) "Extreme Low Tide" means
the lowest estimated tide.
(37) "Fill" means the total
of deposits by artificial means equal to or exceeding 50 cubic yards or more of
material at one location in any waters of this state. However, in designated ESH
areas (OAR 141-102) and in designated Scenic Waterways (OAR 141-100) "fill" means
any amount of deposit by artificial means.
(38) "Food and Game Fish"
means those species identified under ORS 506.011, 506.036 or 496.009.
(39) "Forestland" means the
same as used in the Forest Practices Act and rules (ORS 527.610 to 527.992); land
which is used for the commercial growing and harvesting of forest tree species,
regardless of how the land is zoned or taxed or how any state or local statutes,
ordinances, rules or regulations are applied.
(40) “Functions and
Values” are those ecological characteristics or processes associated with
a water of this state and the societal benefits derived from those characteristics.
The ecological characteristics are “functions,” whereas the associated
societal benefits are “values.”
(41) "Highest Measured Tide"
means the highest tide projected from actual observations within an estuary or tidal
bay (see OAR 141-085-0515).
(42) "Hydrogeomorphic Method
(HGM)" means the method of wetland classification and functional assessment based
on a wetland’s location in the landscape and the sources and characteristics
of water flow.
(43) “Independent Utility”
as used in the definition of “project,” means that the project accomplishes
its intended purpose without the need for additional phases or other projects requiring
further removal-fill activities.
(44) “In-Lieu Fee Mitigation”
means the federally approved compensatory mitigation program used to compensate
for reasonably expected adverse impacts of project development on waters of the
United States and waters of this state with fees paid by the applicant to the Department
or other sponsor, as approved by the Department.
(45) "Interagency Review
Team (IRT)" is an advisory committee to the Department on mitigation banks and other
compensatory mitigation projects.
(46) “Intermittent
Stream” means any stream which flows during a portion of every year and which
provides spawning, rearing or food-producing areas for food and game fish.
(47) “Large Woody Debris”
means any naturally downed wood that captures gravel, provides stream stability
or provides fish habitat, or any wood placed into waters of this state as part of
a habitat improvement or conservation project.
(48) “Legally Protected
Interest” means a claim, right, share or other entitlement that is protected
under state or federal law. A legally protected interest includes, but is not limited
to, an interest in property.
(49) “Linear Facility”
means any railway, highway, road, pipeline, water or sewer line, communication line,
overhead or underground electrical transmission or distribution line, or similar
facility.
(50) “Listed Species”
means any species listed as endangered or threatened under the federal Endangered
Species Act (ESA) and/or any species listed as endangered or threatened by the State
of Oregon.
(51) “Location”
means the entire area where the project is located.
(52) “Maintenance”
means the periodic repair or upkeep of a structure in order to maintain its original
use. “Maintenance” includes a structure being widened by no more than
twenty percent of its original footprint at any specific location in waters of this
state if necessary to maintain its serviceability. “Maintenance” also
includes removal of the minimum amount of sediment either within, on top of or immediately
adjacent to a structure that is necessary to restore its serviceability, provided
that the spoil is placed on upland.
(53) “Material”
means rock, gravel, sand, silt and other inorganic substances and large woody debris,
removed from waters of this state and any materials, organic or inorganic, used
to fill waters of this state.
(54) "Mitigation" means the
reduction of adverse effects of a proposed project by considering, in the following
order:
(a) Avoiding the effect altogether
by not taking a certain action or parts of an action;
(b) Minimizing effects by
limiting the degree or magnitude of the action and its implementation;
(c) Rectifying the effect
by repairing, rehabilitating or restoring the affected environment;
(d) Reducing or eliminating
the effect over time by preservation and maintenance operations during the life
of the action by monitoring and taking appropriate corrective measures; and
(e) Compensating for the
effect by creating, restoring, enhancing or preserving substitute functions and
values for the waters of this state.
(55) "Mitigation Bank" or
"Bank" means a site created, restored, enhanced or preserved in accordance with
ORS 196.600 to 196.655 to compensate for unavoidable adverse impacts to waters of
this state due to activities which otherwise comply with the requirements of ORS
196.600 to 196.905.
(56) "Mitigation Bank Instrument
(MBI)" means the legally binding and enforceable agreement between the Department
and a mitigation bank sponsor that formally establishes the mitigation bank and
stipulates the terms and conditions of the mitigation bank’s construction,
operation and long-term management.
(57) "Mitigation Bank Prospectus"
or "Prospectus" means the preliminary proposal prepared by a mitigation bank sponsor
describing a proposed bank.
(58) "Mitigation Bank Sponsor"
or "Sponsor" means a person or single legal entity that has the authority and responsibility
to fully execute the terms and conditions of a mitigation bank instrument.
(59) "Navigational Servitude"
means activities of the federal government that directly result in the construction
or maintenance of congressionally authorized navigation channels.
(60) "Non-Motorized Methods
or Activities” are those removal-fill activities within ESH that are completed
by hand and are not powered by internal combustion, hydraulics, pneumatics or electricity.
Hand-held tools such as wheelbarrows, shovels, rakes, hammers, pry bars and manually
operated cable winches are examples of common non-motorized methods.
(61) “Non-Water Dependent
Uses” means uses that do not require location on or near a waterway to fulfill
their basic purpose.
(62) “Non-Wetland Waters”
means waters of this state other than wetlands, including bays, intermittent streams,
perennial streams, lakes and all other regulated waters.
(63) “Office of Administrative
Hearings” means the state agency unit that provides Administrative Law Judges
to conduct contested case proceedings.
(64) “Ordinary High
Water Line (OHWL)” means the line on the bank or shore to which the high water
ordinarily rises. The OHWL excludes exceptionally high water levels caused by large
flood events (e.g., 100-year events).
(65) “Oregon Rapid
Wetland Assessment Protocol (ORWAP)” is a method for rapidly assessing wetland
functions and values (as well as other attributes) in all wetland types throughout
Oregon.
(66) “Payment In-Lieu
Mitigation” means compensatory mitigation for waters of this state that is
fulfilled by using funds paid to the Department. The payment in-lieu program is
not approved to compensate for impacts to waters of the United States.
(67) “Perennial Stream”
means a stream that has continuous flow in parts of its bed all year long during
years of normal precipitation.
(68) "Person" means a person
or a public body, as defined in ORS 174.109; the federal government, when operating
in any capacity other than navigational servitude or any other legal entity.
(69) “Plowing”
means all forms of tillage and similar physical means for the breaking up, cutting,
turning over and stirring of soil to prepare it for planting crops. Plowing does
not include deep ripping or redistribution of materials in a manner that changes
any waters of this state to upland.
(70) "Practicable" means
capable of being accomplished after taking into consideration cost, existing technology
and logistics with respect to the overall project purpose.
(71) “Preservation”
means to permanently protect waters of this state having exceptional ecological
features.
(72) "Private Operator" means
any person undertaking a project for an exclusively non-income-producing and nonprofit
purpose.
(73) “Project”
means the primary development or use, having independent utility, proposed by one
person. A project may include more than one removal-fill activity.
(74) “Project Site”
means the geographic area upon which the project is being proposed.
(75) “Prospecting”
means to search or explore for samples of gold, silver or other precious minerals,
using non-motorized methods; by filling, removing or moving by artificial means
less than one cubic yard of material at any one individual site; and, cumulatively,
not more than five cubic yards of material from within the bed or wet perimeter
of any single ESH stream in a single year.
(76) "Public Body" as used
in the statutes of this state means state government bodies, local government bodies
and special government bodies (ORS 174.109).
(77) "Public Use" means a
publicly owned project or a privately owned project that is available for use by
the public.
(78) “Push-Up Dam”
means a berm of streambed material that is excavated or bulldozed (i.e., pushed-up)
from within the streambed itself and positioned in the stream in such a way as to
hold or divert water in an active flowing stream. The push-up dam may extend part
way or all the way across the stream. Push-up dams are most frequently used to divert
water for irrigation purposes associated with agricultural production including
livestock watering. Push-up dams are reconstructed each water-use season; high water
usually flattens or breaches them; and equipment is used to breach or flatten them
at the close of the water-use season.
(79) “Reasonably Expected
Adverse Effect” and “Adverse Impact” means the direct or indirect,
reasonably expected or predictable results of project development upon waters of
this state including water resources, navigation, fishing and public recreation
uses.
(80) “Reconstruction”
means to rebuild or to replace the existing structure in-kind. “Reconstruction”
includes a structure being widened by no more than twenty percent of its original
footprint at any specific location in waters of this state.
(81) “Recreational
Placer Mining” means to search or explore for samples of gold, silver or other
precious minerals by removing, filling or moving material from or within the bed
of a stream, using non-motorized equipment or a motorized surface dredge having
an intake nozzle with an inside diameter not exceeding four inches and a muffler
meeting or exceeding factory-installed noise reduction standards.
(82) "Reference Site" means
a site or sites that represent the desired future characteristics and condition
to be achieved by a compensatory mitigation plan.
(83) "Removal" means the
taking of more than 50 cubic yards of material (or its equivalent weight in tons)
in any waters of this state in any calendar year; or the movement by artificial
means of an equivalent amount of material on or within the bed of such waters, including
channel relocation. However, in designated ESH areas (OAR 141-102) and in designated
Scenic Waterways (OAR 141-100) the 50-cubic-yard minimum threshold does not apply.
(84) “Removal-Fill
Site” means the specific point where a person removes material from and/or
fills any waters of this state. A project may include more than one removal-fill
site.
(85) "Riprap" means facing
a bank with rock or similar substance to control erosion.
(86) “Serviceable”
means capable of being used for its intended purpose.
(87) “Service Area”
means the boundaries set forth in a mitigation bank instrument that include one
or more watersheds identified on the United States Geological Survey, Hydrologic
Unit Map -1974, State of Oregon, for which a mitigation bank provides credits to
compensate for adverse effects from project developments to waters of this state.
Service areas for mitigation banks are not mutually exclusive.
(88) "State Scenic Waterway
(SSW)" means a river or segment of river or lake that has been designated as such
in accordance with Oregon Scenic Waterway Law (ORS 390.805 to 390.995).
(89) “Temporal Loss”
means the loss of the functions and values of waters of this state that occurs between
the time of the impact and the time of their replacement through compensatory mitigation.
(90) “Temporary Impacts”
are adverse impacts to waters of this state that are rectified within 24 months
from the date of the initiation of the impact.
(91) “Tidal Waters”
are the areas in estuaries, tidal bays and tidal rivers located between the highest
measured tide and extreme low tide (or to the elevation of any eelgrass beds, whichever
is lower), that is flooded with surface water at least annually during most years.
Tidal waters include those areas of land such as tidal swamps, tidal marshes, mudflats,
algal and eelgrass beds and are included in the Estuarine System and Riverine Tidal
Subsystem as classified by Cowardin.
(92) “Violation”
means removing material from or placing fill in any of the waters of this state
in a manner that is inconsistent with any provision of the Removal-Fill Law (ORS
196.600 through 196. 990), rules adopted by the Department, or any order or authorization
issued by the Department.
(93) "Water Quality" means
the measure of physical, chemical and biological characteristics of water as compared
to Oregon's water quality standards and criteria set out in rules of the Oregon
Department of Environmental Quality and applicable state law.
(94) “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.
(95) “Waters of This
State” means all natural waterways, tidal and non-tidal bays, intermittent
streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific
Ocean that is in the boundaries of this state, all other navigable and non-navigable
bodies of water in this state and those portions of the ocean shore, as defined
in ORS 390.605, where removal or fill activities are regulated under a state-assumed
permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control
Act, as amended.
(96) "Wet Perimeter", as
used in OAR 141-089, means the area of the stream that is under water, or is exposed
as a non-vegetated dry gravel bar island surrounded on all sides by actively moving
water at the time a removal-fill activity occurs.
(97) “Wetland Creation"
means to convert an area that has never been a wetland to a wetland.
(98) "Wetland Enhancement"
means to improve the condition and increase the functions and/or values of an existing
degraded wetland.
(99) “Wetland Hydrology”
means the permanent or periodic inundation or prolonged saturation sufficient to
create anaerobic conditions in the soil and support hydrophytes.
(100) "Wetland Restoration"
means to reestablish a former wetland.
(101) “Wetlands”
means those areas that are inundated or saturated by surface or ground water at
a frequency and duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions.
Stat. Auth.: ORS 196.825 & 196.600-196.
692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
Removal-Fill Jurisdiction
141-085-0515
Removal-Fill Jurisdiction by Type of Water
This section describes
the types and jurisdictional limits of the waters of this state that are regulated
by the Department of State Lands.
(1) Pacific
Ocean. The Pacific Ocean is jurisdictional from the line of extreme low tide seaward
to the limits of the territorial sea. As defined in ORS 390.605(2), the land lying
between extreme low tide and the statutory vegetation line or the line of established
upland shore vegetation, whichever is farther inland, is known as the “ocean
shore.” “Ocean shore” does not include an estuary as defined in
ORS 196.600. The “ocean shore” is regulated by the Oregon Department
of Parks and Recreation.
(2) Estuaries,
Tidal Bays and Tidal Rivers. Estuaries, tidal bays and rivers below the head of
tide are jurisdictional to the elevation of the highest measured tide (excluding
storm surge), or to the upper edge of wetland, whichever is higher. The head of
tide is the farthest point upstream where a river is affected by tidal fluctuations.
The highest measured tide elevation on a parcel may be determined by a land survey
referenced to the closest tidal benchmark based upon the most recent tidal epoch
and reference to both the tidal datum (MLLW) and the fixed geodetic datum (NAVD88).
In lieu of surveyed elevations, subject to approval by the Department, highest measured
tide elevation may be based upon actual tide gauge measurements during a wintertime
spring tide or observation of the highest of the field indicators listed in subsections
(a) through (f) below. These field indicators are often not observable within the
upper riverine portion of an estuary, in which case a land survey is required:
(a) The uppermost
drift or wrack (or debris) line containing small driftwood, mats of filamentous
algae (algae that form long visible chains, threads, or filaments that intertwine
forming a mat), seaweeds, seagrasses, pieces of bulrush or other emergent vascular
plants, styrofoam or other buoyant plastic debris, bivalve shells, crab molts, or
other aquatic invertebrate remains;
(b) The uppermost
water mark line on an eroding bank;
(c) The uppermost
water mark line (e.g., discoloration; sediment, barnacles, snails, or algae growth)
visible on a hard shoreline or bank consisting of bedrock, boulders, cobbles, riprap
or a seawall;
(d) The uppermost
intertidal zone inhabited by a community of barnacles, limpets, and littorine snails
along shorelines composed of bedrock, riprap, boulders, and/or cobble;
(e) The uppermost
tidal marsh/upland boundary, as indicated by a dominant plant community characteristic
of saltwater, brackish, or freshwater tidal plant communities changing to a dominant
plant community typical of uplands; and/or
(f) The intertidal/upland
boundary along sandy shores as indicated by the appearance of a distinct dune plant
community.
(3) Waters,
Including Rivers, Intermittent and Perennial Streams, Lakes and Ponds. These waters
are jurisdictional to the ordinary high water line (OHWL). The OHWL can be determined
by direct observation of the annual high water event, using local gauge data to
estimate bankfull stage, and/or by using readily identifiable field indicators.
Field indicators for OHWL include:
(a) Clear,
natural line impressed on the shore;
(b) Change
in vegetation from riparian (e.g., willows) to upland (e.g., oak, fir) dominated;
(c) Textural
change of depositional sediment or changes in the character of the soil (e.g., from
sand, sand and cobble, cobble and gravel to upland soils);
(d) Elevation
below which no fine debris (needles, leaves, cones, and seeds) occurs;
(e) Presence
of litter and debris, water-stained leaves, water lines on tree trunks; and/or
(f) Other
appropriate means that consider the characteristics of the surrounding areas.
(4) Wetlands.
Wetlands are jurisdictional within the wetland boundary.
(5) Reservoirs.
The Department’s jurisdiction over reservoirs extends to the higher of either
the normal operating pool level or the upper edge of adjacent wetland.
(6) Artificially
Created Wetlands and Ponds. These waters are jurisdictional when they are:
(a) Equal
to or greater than one acre in size;
(b) Created,
in part or in whole, in waters of this state; or
(c) Identified
in an authorization as a mitigation site.
(7) Exempt
Artificially Created Wetlands and Ponds. Artificially created wetlands and ponds
created entirely from upland, regardless of size, are not waters of this state if
they are constructed for the purpose of:
(a) Wastewater
treatment;
(b) Settling
of sediment;
(c) Stormwater
detention and/or treatment;
(d) Agricultural
crop irrigation or stock watering;
(e) Fire
suppression;
(f) Cooling
water;
(g) Surface
mining, even if the site is managed for interim wetlands functions and values;
(h) Log storage;
or
(i) Aesthetic
purposes.
(8) Jurisdictional
Ditches. Except as provided under section (9) and (10) below, ditches are jurisdictional
if they are:
(a) Created
in wetlands, estuaries, tidal rivers or other waters of this state; or
(b) Created
from upland and meet the following conditions:
(A) Contain
food and game fish; and
(B) Have
a free and open connection to waters of this state. A “free and open connection”
means a connection by any means, including but not limited to culverts, to or between
natural waterways and other navigable and non-navigable bodies of water that allows
the interchange of surface flow at bankfull stage or ordinary high water, or at
or below mean higher high tide between tidal waterways.
(9) Non-Jurisdictional
Irrigation Ditches. Existing irrigation ditches that meet the following tests are
not jurisdictional:
(a) Are operated
and maintained for the primary purpose of conveying water for irrigation; and
(b) Are dewatered
for the non-irrigation season except for water incidentally retained in isolated
low areas of the ditch or are used for stock water runs, provision of water for
fire suppression, or to collect storm water runoff.
(10) Non-Jurisdictional
Roadside and Railroad Ditches. Roadside and railroad ditches that meet the following
tests are not jurisdictional:
(a) Ten feet
wide or less at the ordinary high water line;
(b) Artificially
created from upland or from wetlands;
(c) Not adjacent
and connected or contiguous with other wetlands; and
(d) Do not
contain food or game fish.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600-196.692 & 196.800-196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0520
Removal-Fill
Jurisdiction by Volume of Material
The following criteria are used to determine
jurisdictional volume thresholds that trigger the requirement for an authorization.
(1) Oregon State Scenic Waterways
(SSWs). The threshold volume is any amount greater than zero.
(2) Essential Indigenous
Anadromous Salmonid Habitat (ESH). The threshold volume is any amount greater than
zero.
(3) Compensatory Mitigation
Sites. The threshold volume is any amount greater than zero for compensatory mitigation
sites referenced in an authorization.
(4) All Other Waters of This
State.
(a) For fill activities,
any combination of either organic or inorganic material deposited by artificial
means at any one location in waters of this state equal to or exceeding 50 cubic
yards or the equivalent weight in tons; and
(b) For removal activities,
the taking or movement by artificial means of more than 50 cubic yards of inorganic
material or large woody debris, or the equivalent weight in tons in any calendar
year.
Stat. Auth.: ORS 196.825 & 196.600
- 196.692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12,
cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
141-085-0525
Measuring
and Calculating Volume of Removal and Fill
(1) Calculating
Removal Volume. Removal volume for all waters includes the full extent of the excavation
or movement within the jurisdictional areas.
(2) Calculating
Fill Volume. For waters other than wetlands, fill volume is measured to the ordinary
high water line (OHWL) or the highest measured tide (HMT). For wetlands, fill volume
is measured to the height of the fill, excluding buildings.
(3) Calculating
Volume for Channel Relocation. When calculating the volume for channel relocation,
the threshold is met considering either:
(a) The volume
of material removed to construct the new channel up to OHWL; or
(b) The volume
that would be required to completely fill the old channel to the OHWL or HMT.
(4) Projects
that Involve Both Fill and Removal. For projects that involve both fill and removal,
the combined volumes are used to determine whether a permit is required.
Stat. Auth.: ORS
196.825 & 196.600 - 196. 692

Stats. Implemented:
ORS 196.600 - 196.692 & 196.800 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
Exemptions
141-085-0530
Exemptions for Certain Activities
and Structures
These exemptions apply in all waters
of this state except State Scenic Waterways.
(1) State Forest Management
Practices. Non-federal forest management practices subject to Oregon’s Forest
Practices Act conducted in any non-navigable water of this state are exempt. When
these forestlands are being converted to other uses the exemption does not apply
to the activities associated with the new use. Forest management practices must
be directly connected with a forest management practice conducted in accordance
with ORS 527.610 through 527.770, 527.990 and 527.992, such as:
(a) Reforestation;
(b) Road construction and
maintenance;
(c) Harvesting of forest
tree species; and
(d) Disposal of slash.
(2) Fill for Construction,
Operation and Maintenance of Certain Dams and Water Diversion Structures. Filling
the beds of the waters of this state for the purpose of constructing, operating
and maintaining dams or other diversions for which permits or certificates have
been or will be issued under ORS Chapters 537 or 539 and for which preliminary permits
or licenses have been or will be issued under ORS 543.010 through 543.610 is exempt.
(3) Navigational Servitude.
Activities conducted by or on the behalf of any agency of the federal government
acting in the capacity of navigational servitude in connection with a federally
authorized navigation channel are exempt. Disposal of dredged material within the
ordinary high water line of the same waterway is also exempt.
(4) Maintenance or Reconstruction
of Water Control Structures. Fill or removal or both for maintenance or reconstruction
of water control structures such as culverts, dikes, dams, levees, groins, riprap,
tidegates, drainage ditches, irrigation ditches, and tile drain systems are exempt
if:
(a) The project meets the
definition of maintenance under OAR 141-085-0510(51); or
(b) The project meets the
definition of reconstruction under OAR 141-085-0510(79);
(c) The structure was serviceable
within the past five years; and
(d) The maintenance or reconstruction
would not significantly adversely affect wetlands or other waters of this state
to a greater extent than the wetlands or waters of this state were affected as a
result of the original construction of those structures.
(5) Maintenance and Emergency
Reconstruction of Roads and Transportation Structures. Fill or removal for maintenance,
including emergency reconstruction of recently damaged parts, of currently serviceable
roads or transportation structures, such as groins and riprap protecting roads,
causeways, bridge abutments or approaches, and boat ramps is exempt.
(6) Prospecting and Non-Motorized
Activities within Designated Essential Indigenous Anadromous Salmonid Habitat (ESH).
A permit is not required for prospecting or other non-motorized activities resulting
in removal-fill of less than one cubic yard of material at any one individual site
and, cumulatively, not more than five cubic yards of material within a particular
stream in a single year. Prospecting or other non-motorized activities may be conducted
only within the bed or wet perimeter of the waterway and must not occur at any site
where fish eggs are present.
(7) Fish Passage and Fish
Screening Structures in Essential Indigenous Anadromous Salmonid Habitat (ESH).
Less than 50 cubic yards of removal-fill for construction or maintenance of fish
passage and fish screening structures that are constructed, operated or maintained
under ORS 498.306, 498.316, 498.326 or 509.600 to 509.645. This exemption includes
removal of material that inhibits fish passage or prevents fish screens from functioning
properly.
(8) Change in Point of Diversion
for Surface Water. Fill or removal for a change in the point of diversion to withdraw
surface water for beneficial use is exempt if the change in the point of diversion
is:
(a) Necessitated by a change
in the location of the surface water; and
(b) Authorized by the Oregon
Water Resources Department.
(9) Removal of Large Wood.
Removal of large woody debris is exempt if:
(a) It poses a direct and
demonstrable danger to livestock, human life or real property; or
(b) It poses a risk of harm
to transportation facilities including, but not limited to, culverts, bridges and
roads located near or within the beds or banks of any waters of this state; or
(c) It prevents or obstructs
navigation within the beds or banks of any waters of this state ; and
(d) The removal is no more
than the amount necessary to reduce or eliminate the threat.
Stat. Auth.: ORS 196.825 & 196.600-196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0534
Exemptions for Certain Voluntary
Habitat Restoration Activities
(1) Definitions. For the purposes of
this rule:
(a) “Habitat Restoration”
means the return of an ecosystem from a disturbed or altered condition to a close
approximation of its ecological condition prior to disturbance.
(b) “Voluntary”
means activities undertaken by a person of their own free will, and not as a result
of any legal requirement of the Removal-fill Law (ORS 196.600–196.990).
(2) Conditions of Exemption:
Activities described in Sections (3) through (8) of this rule are exempt from permit
requirements under the following conditions:
(a) Activities are not conducted
in areas designated as State Scenic Waterways, unless listed as an exempt activity
under ORS 390.835(5);
(b) In-water activities are
conducted during the Oregon Department of Fish and Wildlife (ODFW) recommended in-water
timing guidelines, unless otherwise approved in writing by ODFW;
(c) The in-water activities
conform to ODFW fish passage requirements (ORS 509.580 through 509.910), unless
otherwise approved in writing by ODFW;
(d) The activities will not
convert waters of this state to uplands;
(e) The activities will cause
no more than minimal adverse impact on waters of this state including impacts related
to navigation, fishing, and public recreation;
(f) The activities will not
cause the water to rise or be redirected in such a manner that it results in flooding
or other damage to structures or substantial property off of the project site; and
(g) All necessary access
permits, right of ways and local, state, and federal approvals have been obtained.
(3) Research and Fish Management
in Essential Indigenous Anadromous Salmonid Habitat (ESH) is Exempt. A permit is
not required for the construction and maintenance of scientific and research devices
related to population management, watershed and habitat restoration, or species
recovery, provided the activity does not exceed 50 cubic yards of removal-fill.
(4) Vegetative Planting.
A permit is not required for planting native woody or herbaceous plants by hand
or mechanized means. Ground alteration such as grading or contouring prior to planting
is not covered by this exemption.
(5) Refuge Management. A
permit is not required for habitat management activities located on a National Wildlife
Refuge or State Wildlife Area that are consistent with an adopted refuge or wildlife
area management plan. Fill or removal in waters of this state for non-habitat management
activities such as roads and building is not covered by this exemption.
(6) Ditch and Drain Tile
Removal. A permit is not required for the disruption or removal of subsurface drainage
structures (e.g., drain tiles) and plugging or filling of drainage ditches in wetlands.
Notification must be submitted on a form provided by the Department at least 30
calendar days prior to commencing the activity.
(7) Placement of Large Wood,
Boulders and Spawning Gravels. A permit is not required for the placement of large
wood, boulders and spawning gravels provided the material is placed consistent with
the Guide to Placing Large Wood and Boulders (DSL/ODFW 2010). If the activity will
exceed 50 cubic yards of removal-fill in waters of this state, or any amount in
Essential Salmonid Habitat, notice of the activity must be provided to the Department.
Notification must be submitted on a form provided by the Department at least 30
calendar days prior to commencing the activity.
(8) Other Activities Customarily
Associated with Habitat Restoration in Essential Indigenous Anadromous Salmonid
Habitat (ESH). A permit is not required for voluntary habitat restoration activities
resulting in less than 50 cubic yards of removal-fill in waters of this state. This
includes the disposal of material resulting from the restoration activities within
the project area as long as it assists in accomplishing the objectives of the habitat
restoration project. The activities must be consistent with the Oregon Aquatic Habitat
Restoration and Enhancement Guide and utilize materials or structures that would
naturally and/or historically occur at the project site. Notice of the activity
must be provided, submitted on a form provided by the Department, at least 30 calendar
days prior to commencing the activity.
(9) Removal of Trash, Garbage
and Rubble. A permit is not required for the removal of any amount of inorganic
trash, garbage and rubble (e.g., tires, metal, broken concrete, asphalt, foam, plastic)
from waters of this state. The project must meet the following criteria:
(a) There are no adverse
impacts to waters of this state or woody vegetation as a result of the project;
(b) There is no stockpiling
of collected trash, garbage or rubble in waters of this state; and
(c) The trash and garbage
is disposed of at a licensed Department of Environmental Quality collection facility.
Stat. Auth.: ORS 196.825 & 196.600-196.
692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 8-2009, f. 12-15-09
cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12,
cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
141-085-0535
Exemptions
Specific to Agricultural Activities
These exemptions
apply in all waters of this state except State Scenic Waterways.
(1) Exemptions
Do Not Apply to Nonfarm Uses. The exemptions under OAR 141-085-0535(2) and (3) do
not apply to any fill or removal that involves changing an area of wetlands to a
nonfarm use.
(2) Normal
Farming and Ranching Activities on Converted Wetlands. “Converted Wetlands”
are defined under OAR 141-085-0510. Exempt activities on converted wetlands include:
(a) Plowing;
(b) Grazing;
(c) Seeding;
(d) Planting;
(e) Cultivating;
(f) Conventional
crop rotation; and
(g) Harvesting.
(3) Certain
Activities Conducted on Exclusive Farm Use (EFU) Zoned Land. The following activities
on lands zoned for exclusive farm use as described in ORS 215.203 and designated
in the city or county comprehensive plan are exempt:
(a) Drainage
or maintenance of farm or stock ponds;
(b) Maintenance
of existing farm roads in such a manner as to not significantly adversely affect
wetlands or any other waters of this state; or
(c) Subsurface
drainage by deep ripping, tiling or moling, limited to converted wetlands.
(4) Farm
Uses on Certified Prior Converted Cropland. Any activity defined as a farm use in
ORS 215.203 is exempt if the land is zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also certified as prior converted
cropland by the Natural Resources Conservation Service, as long as commercial agricultural
production on the land has not been abandoned for five or more years.
(5) Federal
Conservation Reserve Program. Reestablishment of crops under federal conservation
reserve program provisions set forth in 16 U.S.C. 3831.
(6) Activities
Customarily Associated with Agriculture in Essential Indigenous Anadromous Salmonid
Habitat (ESH). These are activities, including maintenance activities, that are
commonly and usually associated with the raising of livestock or the growing of
crops in Oregon. Removal-fill covered by this exemption must not exceed 50 cubic
yards of material.
(7) Agricultural
Drainage Ditch Maintenance. Exempt maintenance of agricultural drainage ditches
under OAR 141-085-0530(4) includes disposal of dredged material in a thin layer
on converted wetlands, provided such disposal does not change wetland to upland.
For the purposes of this exemption, “ditch” is defined in OAR 141-085-0510(28).
(8) Push-Up
Dams.
(a) Department-authorized
push-up dams equal to or greater than 50 cubic yards can continue to be maintained
indefinitely during the irrigation season and reconstructed each successive season
provided the work is done in compliance with all original permit conditions and
the Oregon Department of Fish and Wildlife fish passage statutes (ORS 509.580 through
509.910). In the event of conflicts with the original permit conditions, the most
recent fish passage requirements will be controlling.
(b) Push-up
dams that were built prior to September 13, 1967, are exempt from the Removal-Fill
Law if they meet the following tests:
(A) Are reconstructed,
serviceable and used within the past five years;
(B) Have
the same effect as when first constructed (i.e., size and location); and
(C) Are operated
in a manner consistent with the water right certificate and ORS 540.510(5).
(c) Push-up
dams less than 50 cubic yards used for agricultural purposes in ESH are exempt.
Stat. Auth.: ORS
196.600 - 196.692, 196.795 - 196.990

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
Permits and Authorizations
141-085-0540
Types of Authorizations
One of the following
types of authorizations is required for regulated activities in waters of this state.
(1) Individual
Permits. IPs are issued for projects that do not qualify for other types of authorizations.
(2) General
Authorizations. GAs are adopted by rule for a category of activities that have minimal
impacts to waters of this state (OAR 141-089).
(3) General
Permits.
(a) GPs are
issued by rule on a statewide or geographic basis; or
(b) By order
for an applicant or group of applicants to cover activities that are substantially
similar in nature, are recurring or ongoing, and have predictable effects and outcomes.
(4) Emergency
Authorizations. EAs are issued in circumstances that pose an immediate threat to
public health, safety or substantial property including crop and farmland.
Stat. Auth.: ORS
196.600 - 196.692, 196.795 - 196.990

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0545
Fees; Amounts
and Disposition
(1) Disposition
of Fees. All applications that require a fee, except for an emergency authorization,
must include the fee at the time of application.
(2) Project
Applications that Require a Fee. Except as provided in Section (3) of this rule,
the following types of projects require a fee for a complete application:
(a) Individual
Permit and General Permit applications that require a fee, must be accompanied by
the applicable base fee and volume fee in accordance with the current fee schedule;
(b) General
Authorization notifications which require a fee under OAR 141-089-0635, must be
accompanied by the flat fee when the proposed removal-fill activity is 50 cubic
yards or more; and
(c) Emergency
Authorization holders, except for erosion or flood repair, must submit the required
fee to the Department within 45 calendar days of receiving the authorization.
(3) Project
Applications that Do Not Require a Fee. No application fee or renewal fee is required
when submitting an application or notification for the following:
(a) An agency
determination that the project does not require a permit from the Department;
(b) Erosion-flood
repair or stream bank stabilization projects, regardless of the authorization type;
(c) Voluntary
habitat restoration projects directed at habitat improvement, regardless of the
authorization type;
(d) A general
authorization when the project involves less than 50 cubic yards of removal-fill
activity; and
(e) A general
permit that does not require a fee when specified in OAR 141-093.
(4) Calculating
Application Fees. For each application that involves both removal and fill activity,
the application fee is calculated separately for each activity using the base and
volume fees. The required fee to be submitted with the application is the greater
of the two calculated fees.
(5) Base
Fees. Base fees are based on the following applicant classifications:
(a) Private
operator, or a person contracting to perform services for a private operator;
(b) Public
body; or
(c) Commercial
operator.
(6) Volume
Fees. In addition to the base fee established under Section (5) of this rule, each
applicant may be required to also pay, as part of the application, an additional
fee based on the volume of material according to the following schedule:
(a) Less
than 500 cubic yards;
(b) 500 to
less than 5,000 cubic yards;
(c) 5,000
to less than or equal to 50,000 cubic yards; or
(d) Over
50,000 cubic yards.
(7) Annual
fees. For individual permits that are renewed or valid for more than one year, an
annual fee is assessed for each year that the permit is in effect. The annual fee
is equal to the base fee at the time of renewal or annual billing and is due by
the anniversary date of issuance of the permit.
(8) Multiyear
Permits. For issuance of multiyear permits valid over a period of more than one
year and up to five years, the Department may assess a one-time fee at the rate
in effect at the time of the application or renewal. The one-time fee must include:
(a) The application
fee; and
(b) Any applicable
annual fees for the duration of the term of the permit.
(9) Adjusting
Fee Amounts. Fees are adjusted annually, on January 1 of each year. By December
1 of each year the Department will consult the Portland-Salem, OR-WA Consumer Price
Index for All Urban Consumers for All Items as published by the Bureau of Labor
Statistics of the United States Department of Labor to determine the appropriate
annual fee adjustment to become effective on January 1 of the following year. The
Department will then revise the fees in accordance with the CPI and post the fee
schedule on the Department’s website (http://oregonstatelands.us/).
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600-196.692 & 196.800-196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12;
DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0550
Application Requirements for Individual Permits
(1) Written Application Required. A
person who is required to have an individual permit to remove material from the
bed or banks, or fill any waters of this state, must file a written application
with the Department for each individual project. A permit must be issued by the
Department before performing any regulated removal-fill activity.
(2) Complete and Accurate
Information Required. Failure to provide complete and accurate information in the
application may be grounds for administrative closure of the application file or
denial, suspension or revocation of the authorization.
(3) Fee Required for a Complete
Application. For an application to be determined complete, the Department must have
received the appropriate fee.
(4) Level of Detail Required
May Vary. The applicant is responsible for providing sufficient detail in the application
to enable the Department to render the necessary determinations and decisions. The
level of documentation may vary depending on the degree of adverse impacts, the
level of public interest and other factors that increase the complexity of the project.
(5) Required Information:
A completed and signed application on current forms provided by the Department,
including any maps, necessary photos and drawings, is required. The information
must be entered in the appropriate blocks on the application form. The Department
may require the applicant to submit any or all application materials electronically.
The application must include all of the following:
(a) Applicant information
including name, mailing address, phone number and e-mail address. When the applicant
is a business entity, the business must be registered with the Oregon Secretary
of State Corporate Division. The exact name of the business entity, as listed with
Secretary of State Corporate Division, must be entered on the application.
(b) Landowner information
including name and mailing address where any removal-fill activity is proposed,
and if applicable, where permittee-responsible compensatory mitigation is proposed.
(A) For the construction
of a new linear facility, the applicant must provide a complete list of landowner
names and mailing addresses for all landowners whose land is identified in the permit
application within the alignment of the new linear facility. Mailing labels must
be provided when there are more than five landowners listed in the application.
(B) For the purpose of this
rule, a condemner is the landowner when:
(i) If using state condemnation
authority, the condemner has complied with ORS Chapter 35, filed an eminent domain
action in court and deposited the condemner’s estimate of just compensation
with the court for the use and benefit of the defendants, or it has a court’s
order authorizing its possession of the land; or
(ii) If using federal authority,
the condemner has complied with Federal Rules of Civil Procedure 71.1 and, if other
than the United States, has a court’s order authorizing its possession of
the land.
(c) Project site location
information including Township, Range, Quarter-quarter Section and Tax Lot(s), latitude
and longitude, street location if any, and location maps with site location indicated.
(d) The location of any off-site
disposal or borrow sites, if these sites contain waters of this state.
(e) Project information including:
(A) Description of all removal-fill
activities associated with the project;
(B) Demonstration of independent
utility to include all phases, projects or elements of the proposed project which
will require removal-fill activities;
(C) Volumes of fill and removal
within jurisdictional areas expressed in cubic yards;
(D) Area of removal and fill
within jurisdictional areas expressed in acres to the nearest 0.01-acre for impacts
greater than 0.01 of an acre or expressed in acres to the nearest 0.001-acre for
impacts less than 0.01 of an acre; and
(E) Description of how the
project will be accomplished including construction methods, site access and staging
areas.
(f) A description of the
project purpose and need for the removal or fill. All projects must have a defined
purpose or purposes and the need for removal or fill activity to accomplish the
project purpose must be documented. The project purpose statements and need for
the removal or fill documentation must be specific enough to allow the Department
to determine whether the applicant has considered a reasonable range of alternatives.
(g) Project plan views and
cross-sectional views drawn to scale that clearly identify the jurisdictional boundaries
of the waters of this state (e.g., wetland delineation or ordinary high water determination).
Project details, such as work area footprint, impact area and approximate property
boundaries must also be included so that the amount and extent of the impact to
jurisdictional areas can be readily determined.
(h) A written analysis of
potential changes that the project may make to the hydrologic characteristics of
the waters of this state, and an explanation of measures taken to avoid or minimize
any adverse impacts of those changes, such as:
(A) Impeding, restricting
or increasing flows;
(B) Relocating or redirecting
flow; and
(C) Potential flooding or
erosion downstream of the project.
(i) A description of the
existing biological and physical characteristics of the water resources, along with
the identification of the adverse impacts that will result from the project.
(j) A description of the
navigation, fishing and public recreation uses, when the project is proposed on
state-owned land.
(k) If the proposed activity
involves wetland impacts, a wetland determination or delineation report that meets
the requirements in OAR 141-090 must be submitted, unless otherwise approved in
writing by the Department. A wetland delineation is usually required to determine
the precise acreage of wetland impact and compensatory wetland mitigation requirements.
Whenever possible, wetland determination and delineation reports should be submitted
for review well in advance of the permit application. Although an approved wetland
delineation report is not required for application completeness, a jurisdictional
determination must be obtained prior to the permit decision.
(l) A functions and values
assessment that meets the requirements in OAR 141-085-0685 when permanent impacts
to wetlands are proposed.
(m) Any information known
by the applicant concerning the presence of any federal or state listed species.
(n) Any information known
by the applicant concerning historical, cultural and archeological resources. Information
may include but is not limited to a statement on the results of consultation with
impacted tribal governments and/or the Oregon State Historic Preservation Office
of the Oregon Parks and Recreation Department.
(o) An analysis of alternatives
to derive the practicable alternative that has the least reasonably expected adverse
impacts on waters of this state. The alternatives analysis must provide the Department
all the underlying information to support its considerations enumerated in OAR 141-085-0565,
such as:
(A) A description of alternative
project sites and designs that would avoid impacts to waters of this state altogether,
with an explanation of why each alternative is, or is not practicable, in light
of the project purpose and need for the fill or removal;
(B) A description of alternative
project sites and designs that would minimize adverse impacts to waters of this
state with an explanation of why each alternative is, or is not practicable, in
light of the project purpose and need;
(C) A description of methods
to repair, rehabilitate or restore the impact area to rectify the adverse impacts;
and
(D) A description of methods
to further reduce or eliminate the impacts over time through monitoring and implementation
of corrective measures.
(p) If applicable, a complete
compensatory mitigation plan that meets the requirements listed in OAR 141-085-0680
through 141-085-0715 and 141-085-0765 to compensate for unavoidable permanent impacts
to waters of this state and a complete rehabilitation plan if unavoidable temporary
impacts to waters of this state are proposed.
(q) For each proposed removal-fill
activity and physical mitigation site applied for in the application, a list of
the names and addresses of the adjacent landowners, including those properties located
across a street or stream from the proposed project.
(A) For a new linear facility,
the applicant must provide a list of the names and mailing addresses of the adjacent
landowners for the new linear facility.
(B) Mailing labels must be
provided by the applicant, when there are more than five names and addresses of
adjacent landowners listed.
(r) A signed local government
land use affidavit.
(s) A signed Coastal Zone
Certification statement, if the project is in the coastal zone.
(t) Applicant Signature.
Signature of the applicant must be provided. If the application is on behalf of
a business entity, a certificate of incumbency must be provided to certify that
the individual signing the application is authorized to do so.
(u) Landowner Signature.
If the applicant is not the landowner upon which the removal-fill activity (including
mitigation) is to occur and does not hold an easement allowing the activity on that
land, a written authorization from the owner of the land consenting to the application
must be provided.
(A) Notwithstanding the requirement
set forth under Subsection (u) above, a landowner signature is not required for
applications for the construction and maintenance of linear facilities; and
(B) The condemner may sign
as landowner when the requirements of OAR 141-085-0550(5)(b)(B) have been met.
(v) Mitigation Site Landowner
Signature. If the applicant is not the owner of the land upon which the mitigation
is to occur and does not hold an easement allowing the activity on that land, a
written authorization from the owner of the land consenting to the application must
be provided.
(w) Inventory and Evaluation
if Related to Marine Resources or Removal-Fill in Oregon’s Territorial Sea.
A resource inventory and effects evaluation consistent with the requirements contained
in the Oregon Territorial Sea Plan Part 2 is required. The resource inventory and
effects evaluation must be provided as a stand-alone attachment to the applicant’s
Joint Permit Application.
(6) Additional Requirements
for Estuarine Fill. If the activity is proposed in an estuary for a non-water-dependent
use, a complete application must also include a written statement that describes
the following:
(a) The public use of the
proposed project;
(b) The public need for the
proposed project; and
(c) The availability of alternative,
non-estuarine sites for the proposed use.
(7) Additional Information
as Requested. The Department may request additional information as necessary to
make an informed decision on whether or not to issue the authorization.
(8) Waiver of Required Information.
At its discretion, the Department may waive any of the information requirements
listed in Section (5) of this rule for voluntary restoration projects.
(9) Permit Application Modifications.
A modification to a permit application may be submitted at any time prior to the
permit decision. If the modification is received after the public review period,
the Department may circulate the revised application again for public review. Modifications
proposing significantly different or additional adverse impacts will generally be
resubmitted for public review. The Department may set an expedited time frame for
public review.
(10) Pre-Application Conference.
An applicant may request the Department to hold a pre-application meeting. In considering
whether to grant the request, the Department will consider the complexity of the
project and the availability of Department staff.
Stat. Auth.: ORS 196.825 & 196.600-196.665
& 196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0555
Individual Removal-Fill Permit Application Review Process
(1) Completeness Review. Within 30 calendar days of the receipt of an application, the Department will review the application to determine if it is complete and adequately addresses the application requirements.
(2) Notification of Completeness Determination. Following the completeness review, the Department will inform the applicant of one of the following findings:
(a) The application is complete and will proceed to the public review process;
(b) The application is incomplete because of certain deficiencies; or
(c) The project does not require an authorization from the Department (no state permit required).
(3) Incomplete Application. If the Department determines that the application is incomplete or deficient, the Department will notify the applicant in writing and list the missing or deficient information. The application will be suspended awaiting revision. To initiate a new completeness review, the applicant must resubmit the entire amended application package for consideration, unless instructed by the Department to do otherwise. Submission of a new or amended application package starts a new 30-day initial review period.
(4) Timeframe for Resubmittal of Incomplete Applications. If a revised application is not resubmitted within 120 calendar days of an incompleteness determination, the Department may administratively close the application. If the Department closes the file for failure of the applicant to respond in a timely fashion to the request for additional information, the Department will retain the application fee. A subsequent application for the same or similar project will require submittal of a new application and payment of an application fee.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0560
Public Review Process for Individual Removal-Fill Permit Applications
Public Review Process for Individual
Removal-Fill Permit Applications
(1) Circulation of the Application for
Public Review. Once the application has been deemed complete and sufficient, the
Department will provide notification of the availability of the application for
review either by U.S. mail or electronically (e.g., facsimile, e-mail, posting on
the Internet) to adjacent property owners, watershed councils, public interest groups,
affected local government land use planning departments, state agencies, federal
agencies and tribal governments in the geographic area affected by the permit. For
construction and maintenance of linear facilities, landowners identified in the
application will be notified by U.S. mail or electronically that the application
is available for review. Upon request the Department may make a copy of the application
available at the public library closest to the proposed project.
(2) Copies of the Application
by Request. The Department will furnish to any member of the public, upon written
request and at the expense of the member of the public, a printed copy of any application.
(3) Submitting Public Comments.
To be considered by the Department and to become part of the permit record, all
comments must be sent to the destination specified in the notification or submitted
through the Web site. All recommendations and comments regarding the application
must be submitted in writing to the Department within the period established by
the Department, but not more than 30 calendar days from the date of the notice,
except as noted under Subsection (a), below:
(a) The Department will grant
an extension of up to 75 calendar days to the Department of Environmental Quality
if the application requires Section 401 certification under the Federal Water Pollution
Control Act (P.L. 92-500) as amended.
(b) If a commenter fails
to comment on the application within the comment period, the Department will assume
the commenter has no objection to the project.
(4) Department Review of
Public Comments and Public Hearing. The Department will review and consider substantive
comments received during the public review period, and may conduct any necessary
investigations to develop a factual basis for a permit decision. Necessary investigations
may include but are not limited to the following:
(a) The Department may, as
a result of the public review process or the Department's investigations, request
that the applicant submit supplemental information and answer additional questions
prior to the Department making the permit decision.
(b) The Department may schedule
a permit review coordination meeting with interested agencies or groups and the
applicant to provide the applicant an opportunity to explain the project and to
resolve issues; and
(c) At the Department's discretion,
the Department may hold a public hearing to gather necessary information that may
not otherwise be available to make a decision.
(5) Applicant Response to
Comments.
(a) Comments resulting from
the public review process will be forwarded to the applicant after the comment period
deadline.
(b) The applicant may, at
his or her discretion, respond to public and agency comments. The response may be
in the form of additional information to support the application and/or revisions
to the project that address the comments.
(c) If no response is received
from the applicant by the date specified by the Department, the Department will
presume that the applicant does not intend to provide additional supporting information
or revisions to the application.
(6) Final Review.
(a) Unless the timeline is
extended as provided below in Subsection (b), the Department will make a final permit
decision within 90 calendar days after determining an application is complete;
(b) The permit decision deadline
may be extended beyond 90 calendar days when the applicant and the Department agree
to an extension.
(c) If the Department does
not approve an extension, the Department will make a final permit decision based
upon the record as it existed within:
(A) The original 90-day time
period; or
(B) The extension period
approved immediately prior to the applicant’s most recent request for an extension.
(7) Application Withdrawal.
An applicant may withdraw an application at any time prior to the permit decision.
In the event the applicant fails to respond to the Department's requests for information
or otherwise fails to reasonably proceed with the application process, the Department
may administratively withdraw the application with at least 30 calendar days’
notice to the applicant. There will be no refund of the application fee in either
case.
Stat. Auth.: ORS 196.825 & 196.600
- 196. 692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12,
cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
141-085-0565
Department Determinations and Considerations in Evaluating Individual Permit Applications
(1) Departmental Final Review. The Department will evaluate the information provided in the application, conduct its own investigation, and consider the comments submitted during the public review process to determine whether or not to issue an individual removal-fill permit.
(2) Effective Date of Review Standards. The Department may consider only standards and criteria in effect on the date the Department receives the complete application or renewal request.
(3) Department Determinations. The Department will issue a permit if it determines the project described in the application:
(a) Has independent utility;
(b) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 to 196.990; and
(c) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation, when the project is on state-owned lands.
(4) Department Considerations. In determining whether to issue a permit, the Department will consider all of the following:
(a) The public need for the proposed fill or removal and the social, economic or other public benefits likely to result from the proposed fill or removal. When the applicant for a permit is a public body, the Department may accept and rely upon the public body’s findings as to local public need and local public benefit;
(b) The economic cost to the public if the proposed fill or removal is not accomplished;
(c) The availability of alternatives to the project for which the fill or removal is proposed;
(d) The availability of alternative sites for the proposed fill or removal;
(e) Whether the proposed fill or removal 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 the 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 practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800.
(5) Alternatives Analysis. The Department will issue a permit only upon the Department's determination that a fill or removal project is consistent with the protection, conservation and best use of the water resources of this state and would not unreasonably interfere with the preservation of the use of the waters of this state for navigation, fishing and public recreation. The Department will analyze a proposed project using the criteria set forth in the determinations and considerations in Sections (3) and (4) above (OAR 141-085-0565). The applicant bears the burden of providing the Department with all information necessary to make this determination.
(6) Fills in an Estuary for Non-Water Dependent Use. A “substantial fill” in an estuary is any amount of fill regulated by the Department. No authorizations will be issued for a substantial fill in an estuary for a non-water dependent use unless all of the following apply:
(a) The fill is for a public use;
(b) The fill satisfies a public need that outweighs the harm, if any, to navigation, fisheries and recreation; and
(c) The removal-fill meets all other review standards.
(7) Written Findings. In the following cases, the Department will prepare written findings to document an individual removal-fill permit decision:
(a) Permit denial;
(b) Fill of two acres or more in wetlands;
(c) Fill in estuaries (except cable crossings, pipelines, or bridge construction);
(d) Removal from estuaries of more than 10,000 cubic yards of material (except for maintenance dredging);
(e) Placement of greater than 2,500 cubic yards of riprap in coastal streams or estuaries;
(f) Removal-fill in the Oregon Territorial Sea in accordance with Statewide Planning Goal 19-Ocean Resources; and
(g) Any permit decision that is contrary to the final decision recommendation of a state agency.
(8) Marine Reserves and Marine Protected Areas. The Department will only authorize a removal-fill activity within an area designated by the State Land Board as a marine reserve or a marine protected area if the removal-fill activity is necessary to study, monitor, evaluate, enforce or protect or otherwise further the studying, monitoring, enforcement and protection of the reserve or marine protected area.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0575
Permit Appeals
(1) Applicant Appeal Within 21 Calendar
Days. An applicant may request a contested case proceeding if they object to an
application incompleteness determination, permit decision or permit condition imposed
by the Department. The request must be in writing and must be received by the Department
within 21 calendar days of the decision.
(2) Other Person Appeal Within
21 Calendar Days. Any person who is aggrieved or adversely affected by the Department's
final decision concerning an individual permit or a condition therein may request
a contested case proceeding. The request must be in writing and must be received
by the Department within 21 calendar days of the decision.
(3) Standing in Contested
Case. For a person other than the applicant to have standing to request a contested
case, the person must be either "adversely affected" or "aggrieved”:
(a) To be "adversely affected"
by the Department's individual removal-fill permit decision, the person must have
a legally protected interest that would be harmed, degraded or destroyed by the
authorized project.
(b) To be "aggrieved" by
the Department's individual removal-fill permit decision the person must have participated
in the Department's review of the project application by submitting timely written
or verbal comments stating a position on the merits of the proposed removal-fill
to the Department.
(4) Contents of the Request.
The Department has determined that due to the complexity of removal-fill permitting,
a general denial of the matters alleged in the request for a contested case proceeding
does not provide sufficient information for a fair and efficient contested case
and a more specific request is warranted. All requests for a contested case proceeding
under this section shall include a specific list of issues for the contested case
proceeding. The requester may amend their request to include additional issues or
clarify existing issues within 15 days of the date that the case is referred to
the Office of Administrative Hearings.
(5) Contested Case Proceeding.
If the written request for a contested case proceeding is timely, clearly identifies
at least one specific issue, and was made by an eligible person, the matter will
be referred to the Office of Administrative Hearings. The contested case will be
conducted as follows:
(a) The hearing will be conducted
as a contested case pursuant to OAR 137-003-0501 through 137-003-0690 and this rule;
(b) The permit holder and
any other persons that are adversely affected or aggrieved that have filed a timely
written request for a contested case proceeding will be parties to the proceeding;
and
(c) An Administrative Law
Judge will conduct a contested case proceeding only on the specific issues clearly
identified in the request for contested case proceeding as provided in subsection
(4) of this section or in the referral from the Department.
(6) Review of Jurisdictional
Determinations. Jurisdictional determinations of the existence, or boundaries, of
the waters of this state on a parcel of property, issued more than 60 calendar days
before a request for a contested case proceeding are final. Jurisdictional determinations
are judicially cognizable facts of which the Department may take official notice
under ORS 183.450(3) in removal-fill contested cases. Challenges to jurisdictional
determinations are only permitted under the process set out in OAR 141-090.
(7) The Proposed Order. The
Administrative Law Judge will issue a proposed order containing findings of fact
and conclusions of law. If the request for a contested case proceeding was filed
by a person other than the applicant, with a legally protected interest that is
adversely affected by the issuance of the permit, the Administrative Law Judge shall
issue a proposed order within 20 business days of the evidentiary hearing. Other
proposed orders should be issued within 90 calendar days of a ruling that resolves
all issues of the evidentiary hearing. As required by ORS 183.460, the proposed
order shall provide an opportunity to file written exceptions with the Department.
(8) Amended Proposed Order.
The Department may issue an amended proposed order. Any amended proposed order shall
provide an opportunity to file written exceptions with the Department.
(9) The Final Order. The
Department will consider the record, any exceptions, and enter a final order containing
findings of fact and conclusions of law. The final order will rescind, affirm or
modify the permit or proposed order. If the request for a contested case proceeding
was filed by a person other than the applicant, with a legally protected interest
that is adversely affected by the issuance of the permit, the Department shall issue
the final order within 45 business days after the evidentiary hearing, if any. All
other final orders should be issued within 90 calendar days of the proposed order
or amended proposed order.
(10) Pre-Hearing Suspension
of Permits. A permit granted by the Department may be suspended by the Department
during the pendency of the contested case proceeding. Petitions for suspension must
be made to the Department and will be either granted or denied by the Department.
The permit will not be suspended unless the person aggrieved or adversely affected
by issuance of the permit makes a showing before the Department by clear and convincing
evidence that commencement or continuation of the fill would cause irremediable
damage and would be inconsistent with ORS 196.800 through 196.990.
(11) Issuance or Denial of
a Permit. Interested persons who request notification in writing of the Department's
decision on a permit will be notified at the time of issuance or denial. The Department's
failure to notify an interested person will not extend any timeframe for a request
for a contested case proceeding.
Stat. Auth.: ORS 196.825 & 196.600
– 196.692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
141-085-0580
Discovery in Contested Cases
In contested cases conducted on matters relating to these rules, the Department delegates to the hearing officer the authority to rule on any issues relating to discovery, except that depositions will only be awarded if it is likely that a witness will not be available at a hearing.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09
141-085-0585
Permit Conditions, Permit Expiration Dates and Permit Transfer
(1) Applicable Permit
Conditions. If the Department approves the permit, it will impose applicable conditions
to eliminate or reduce the reasonably expected adverse impacts of project development
to waters of this state.
(2) Applicant
Acceptance of Permit Conditions. Once an authorization holder initiates the removal
fill activity authorized by a permit, it is understood that the permit holder accepts
the conditions contained within the permit.
(3) Enforceability
of Permit Conditions. Authorizations may include conditions, including compensatory
mitigation and monitoring conditions that impose obligations beyond the expiration
date of the removal/fill activity. All such conditions are enforceable until such
obligations are satisfied.
(4) Conflicts
Between the Application and Permit Conditions. The application, including all plans
and operating specification, becomes an enforceable part of the removal-fill authorization.
In the event there is a conflict between information contained in the application
and conditions in the removal-fill authorization, the authorization conditions prevail.
(5) Permit
Expiration Date. The Department may issue an individual removal-fill authorization
for up to five years for removal-fill activities that occur on a continuing basis
or will take more than one year to complete.
(6) Limits
on Terms for Commercial Gravel Operations. For commercial gravel removal, the Department
will only issue a multi-year permit when it determines that:
(a) There
is sufficient aggregate resource or annual recharge to allow the proposed volumes
to be removed; and
(b) The authorization
holder has, for at least one year preceding the pending renewal, conducted removal
in compliance with permit conditions.
(7) Modification
of Permit Conditions. Modifications of permit conditions may be either requested
by the authorization holder or initiated by the Department.
(a) A modification
request from the authorization holder must be submitted in writing. Based on the
scope of the modification request, the Department may:
(A) Modify
permit conditions to address changes in operating conditions or changes to the project;
or
(B) Deny
the modification request and request a new application.
(b) The Department
may modify permit conditions to address new standards or new information related
to water resource impacts in effect at the time of the permit renewal request or
on the anniversary date of issuance for multiyear permits issued in accordance with
OAR 141-085-0545(8).
(8) Transfer
of Permit Responsibility. Authorizations are issued to the applicant and are not
automatically transferred through property transactions. The applicant is responsible
for complying with the conditions of the permit, unless the permit is officially
transferred to a different person or party. A transfer form must be submitted to
the Department for review and approval. If the transferee is a business entity,
the business must be registered with the Oregon Secretary of State Corporate Division.
The exact name of the business entity, as listed with Secretary of State Corporate
Division, must be entered on the transfer form. The transfer form must be accompanied
by a signed certificate of incumbency. Transfers are approved through one of the
following means:
(a) If the
authorization has not expired, the Department will issue a modified permit to the
transferee, who will then be responsible for complying with all of the conditions
in the permit. If financial security was required for compensatory mitigation, a
new financial security instrument, naming the transferee as the obligor must be
provided to the Department before the transfer; or
(b) If the
authorization has expired, but there is a pending mitigation obligation, the mitigation
obligation will be transferred to the transferee through an acknowledgement letter.
If financial security was required for the pending mitigation obligation, a new
financial security instrument must be provided, naming the transferee as the obligor
prior to the transfer.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0590
Renewal and Extension of Individual Removal-Fill Permits
(1) Renewal of Individual Permits. Individual permits may be renewed if the permit holder anticipates that the project within waters of this state will not be completed by the permit expiration date.
(2) Renewal Notice. At least 90 calendar days prior to the expiration of a valid removal-fill permit, the Department will send a renewal notice to the permit holder. The renewal notice will inform the permit holder of the expiration date of the permit and offer an opportunity to renew the permit.
(3) Request for Renewal. In order to renew the permit, the permit holder must respond with a request to renew the permit. The request for renewal must:
(a) Include a short statement of the status of the project, including any compensatory mitigation requirements;
(b) Include the base fee;
(c) Be received by the Department at least 45 calendar days prior to the expiration of the permit; and
(d) If requested by the Department, be accompanied by an updated application. Updated applications may be required for permits that have been in effect for five years, and at every five-year increment thereafter. Updated applications must be provided on current forms provided by the Department.
(4) Processing the Renewal Request. Upon receipt of a request for renewal, the Department:
(a) Must review the request pursuant to the standards contained in the applicable rules in effect at the time of the request; and
(b) May provide public notice of the renewal in accordance with the provisions in OAR 141-085-0560.
(5) Department’s Decision. Upon review of the renewal request, along with any updated information or public comments, the Department will either:
(a) Renew the permit, with or without modified conditions;
(b) Extend the permit for an additional time period; or
(c) Deny the request for permit renewal.
(6) Extension of a Permit Expiration Date. At the discretion of the Department, a permit expiration date may be extended:
(a) If more time is needed to resolve issues that arise during the renewal process; or
(b) If the applicant failed to respond to the renewal request in a timely manner.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0595
Permit Requirements
and Interagency Coordination for Department of Environmental Quality Approved Remedial
Action, Corrections Facilities, Solid Waste Land Fills and Energy Facilities
(1) DEQ Remedial
Action Waiver. Pursuant to ORS 465.315, no removal-fill authorization is required
for remedial action conducted on a site selected or approved by the Department of
Environmental Quality. The responsible party must notify the Department of its intended
action, pay applicable fees, and comply with the substantive requirements provided
by the Department. Failure to comply with the substantive requirements may result
in enforcement action.
(2) Application
Process Requirements for Specific Siting Entities. Upon submission by the applicant
of a complete application and payment of the proper fees, the Department will issue
the permits authorized by the authorized siting entity listed below, subject to
the conditions set forth by the siting entity (including conditions supplied to
the siting authority by the Department). The Department will continue to exercise
enforcement authority over a permit issued pursuant to this section. These siting
entities are:
(a) The Corrections
Facilities Siting Authority, pursuant to ORS 421.628, relating to siting corrections
facilities;
(b) The Environmental
Quality Commission, pursuant to ORS 459.047, relating to siting solid waste landfills;
(c) The Energy
Facility Siting Council, pursuant to ORS 469.300 et seq. related to siting energy
facilities; and
(d) The Economic
Recovery Review Council, pursuant to Oregon Laws 2011, chapter 564, related to the
siting of industrial development projects of state significance.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0665
Expedited Process for Industrial or Traded Sector Sites
(1) Department Assistance with Industrial Siting. The Department will participate in planning and authorizing removal-fill within waters of this state for certain industrial or traded sector sites identified by the Oregon Business Development Department (OBDD). The Department will provide assistance to the maximum extent feasible, taking into account budget and staffing constraints.
(2) Site Designation Process. The Director may, upon the request of OBDD, designate a site for expedited planning and processing. The project proponent or sponsor will have authority to authorize the Department or its agents physical access to the site.
(3) Department-Appointed Project Leader. The Director will assign a project leader from the Department to work with the OBDD, other applicable agencies and the project sponsor. Such work will include, but is not limited to:
(a) Expedited jurisdictional determinations by the Department;
(b) Technical assistance in the preparation of jurisdictional delineation and functional assessment reports, impact avoidance and minimization strategies, alternatives analyses and compensatory mitigation plans;
(c) Assistance with other permit application documents necessary to issue an authorization or to avoid the need to obtain an authorization by planning the project in such a way so as to avoid impacts to waters of this state;
(d) Expedited review of removal-fill applications and prompt permit decision as long as doing so will not result in the Department missing statutory deadlines for other permits; and/or
(e) Assistance with the early identification and resolution of issues raised by other agencies and the public.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0676
Emergency Authorizations
(1) Eligibility
and Applicability. The Department may issue, orally or in writing, an emergency
authorization to a person for the removal of material from the beds or banks or
filling of any waters of this state in an emergency, for the purpose of making repairs
or for the purpose of preventing irreparable harm, injury or damage to persons or
property. In order to qualify for an emergency authorization the Department must
determine that:
(a) The emergency
poses a direct threat to substantial property, including but not limited to a dwelling,
transportation structure, farm or cropland;
(b) Prompt
action is required to reduce or eliminate the threat;
(c) The nature
of the threat does not allow the time necessary to obtain some other form of authorization;
and
(d) The proposed
project is the minimal amount necessary to reduce or eliminate the threat and minimizes,
to the extent practicable, adverse impacts to waters of this state.
(2) Information
Requirements. Any person requesting an emergency authorization may apply verbally
or in writing. Written applications may be sent via facsimile, e-mail or U.S. mail.
Applications for an emergency authorization must include:
(a) The applicant
planning and carrying out the activity;
(b) The location
of the project;
(c) The nature
of the emergency (specifically, the nature of the threat to public health, public
safety or property and the immediacy of the threat and need to act promptly);
(d) A description
of the proposed work, including the approximate volume of material to be removed
and/or filled, how the work will be accomplished and the schedule for doing the
work;
(e) The date
and approximate time when the event that caused the emergency took place;
(f) A statement
as to whether the emergency action is intended as a temporary or permanent response
measure; and
(g) Additional
information, as requested from the Department.
(3) Authorized
Representative. The Department may authorize a person, including personnel from
public agencies, to act as a representative of the Department to conduct an on-site
evaluation of the planned activity and make recommendations as to whether or not
the application should be approved as requested, approved with conditions, denied
or processed as an individual removal-fill authorization application.
(4) Department
Decision. Based on review of all the available information, the Department may take
the following action(s):
(a) Approve
the emergency authorization, either verbally or in writing; or
(b) Deny
issuance of the emergency authorization. If a request for an emergency authorization
is denied, the applicant may submit an application for an individual removal-fill
permit, general permit or general authorization, as appropriate for the scope of
the project.
(5) Written
Authorization Needed to Confirm Verbal Authorization. If an emergency authorization
is issued verbally, the authorization will be confirmed in writing by the Department
within five calendar days confirming the issuance and setting forth the conditions
of operation.
(6) Term.
The term of the emergency authorization will be limited to the time necessary to
complete the planned project and will be specifically stated in the authorization.
(7) Conditions
of Emergency Authorizations. An emergency authorization may contain conditions to
minimize the reasonably expected adverse impacts of the activity to waters of this
state. Conditions may include:
(a) Compensatory
mitigation or compensatory wetland mitigation;
(b) A requirement
to revise the project and apply for a removal-fill permit after the emergency situation
has subsided;
(c) A requirement
to submit a report on the outcome of the project or monitor the project removal-fill
sites; and
(d) Any other
condition necessary to minimize reasonably expected adverse impacts on waters of
this state.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; Renumbered from 141-085-0570 by DSL 8-2009,
f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012,
f. 9-28-12, cert. ef. 9-29-12
Compensatory Mitigation For Wetlands And Tidal Waters
141-085-0680
Compensatory Wetland and Tidal Waters Mitigation (CWM); Applicability and Principal Objectives
(1) Applicability. OAR 141-085-0680
through 141-085-0760 applies to removal-fill that occurs within wetlands and tidal
waters and applies to all forms of compensatory mitigation (i.e., mitigation bank,
in-lieu fee mitigation, advance mitigation, permittee responsible mitigation, and
payment in-lieu mitigation). OAR 141-085-0680 through 141-085-0760 does not apply
to removal-fill within areas covered by an approved Wetland Conservation Plan.
(2) Principal Objectives
for CWM. For projects where impacts to wetlands or tidal waters cannot be avoided,
CWM will be required to compensate for the reasonably expected adverse impacts in
fulfillment of the following principal objectives. The principal objectives of CWM
are to:
(a) Replace functions and
values lost at the removal-fill site;
(b) Provide local replacement
for locally important functions and values, where appropriate;
(c) Enhance, restore, create
or preserve wetlands or tidal areas that are self-sustaining and minimize long-term
maintenance needs;
(d) Ensure the siting of
CWM in ecologically suitable locations considering: local watershed needs and priorities;
appropriate landscape position for the wetland types, functions and values sought;
connectivity to other habitats and protected resources; and the absence of contaminants
or conflicting adjacent land uses that would compromise wetland functions; and
(e) Minimize temporal loss
of wetlands and tidal waters and their functions and values. (b) Applicants must
demonstrate how the selected method of CWM (i.e., mitigation bank, in-lieu fee mitigation,
advance mitigation, permittee-responsible mitigation and payment in-lieu mitigation)
addresses the principal objectives.
(3) General Requirements.
(a) Permittee-responsible
CWM at an off-site location will be located within the 4th field Hydrologic Unit
Code (HUC) in which the removal-fill site is located.
(b) Impacts to tidal waters
must be replaced in the same estuary unless the Director determines that it is environmentally
preferable to exceed this limitation.
(c) Projects that involve
0.20 acres or less of permanent wetland impact may use mitigation banks, in-lieu
fee, or payment in-lieu mitigation without addressing the principal objectives set
forth in Section (2) of this rule.
(d) Payment in-lieu mitigation
or in-lieu fee credits for which the Department is the sponsor may not be used if
appropriate mitigation bank credits are available on the day that the public review
period closes.
Stat. Auth.: ORS 196.825 & 196.600-196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0685
Functions and Values Assessment
(1) Purpose. The purpose of the functions and values assessment is to document those wetland or tidal waters functions and values anticipated to be lost as a result of the project and help ensure that the proposed CWM will replace those functions and values.
(2) Assessment Requirements. Elements of a functions and values assessment must include the following:
(a) Existing functions and values at the proposed project site;
(b) Functions and values reasonably expected to be adversely impacted by the proposed project;
(c) Existing functions and values at the proposed CWM site, if the site is currently wetland or tidal waters; and
(d) The projected net gain or loss of specific functions and values as a result of the CWM project compared to the reasonably expected adverse impacts as a result of the project.
(3) Methods. Wetland functions and values assessment methods and requirements are as follows:
(a) All applications for tidal waters impacts or for wetland impacts of greater than 0.20 acres must include a functions and values assessment using the reference-based method in the appropriate Hydrogeomorphic Method (HGM) guidebook for Oregon wetlands, if available. If not available, the Oregon Rapid Wetland Assessment Protocol (ORWAP) is the required method.
(A) The same functions and values assessment method must be used on the impact site and the proposed CWM site.
(B) A functions and values assessment is not required for the CWM site if CWM is proposed to be fulfilled by purchase of bank credits, advance mitigation credits, or fee in-lieu program credits.
(C) If the same reference-based HGM is not available for both the impact site and the CWM site, then ORWAP must be used for both the impact site and the CWM site.
(D) If a reference-based HGM is not available for all wetland subclasses on the impact site, then ORWAP must be used for all wetlands on the impact site.
(b) For non-tidal wetland impacts involving impacts of 0.20 acres or less, ORWAP is the preferred method, but best professional judgment may be used to assess wetland functions and values. A written discussion of the basis of the conclusions based on best professional judgment must be provided. For example, if the water quality function is determined to be "low,” a detailed rationale based upon direct measurement or observation of indicators of water quality function must be discussed.
(c) If best professional judgment is used, wetland functions and values to be assessed must include, but are not limited to:
(A) Water quality and quantity;
(B) Fish and wildlife habitat;
(C) Native plant communities and species diversity; and
(D) Recreation and education.
(d) The Oregon Freshwater Wetland Assessment Methodology will not satisfy the requirements of OAR 141-085-0685.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0690
Additional Requirements for CWM
(1) Replacement
by Class and Functions and Values. The CWM project must have the capability to replace:
(a) Wetland
or tidal water type(s) impacted by the project, as classified per Cowardin system
and class (e.g., palustrine forested) and by HGM class/subclass(es) impacted by
the project (e.g., riverine impounding), using the Oregon HGM Statewide Classification
(Oregon Department of State Lands, 2001); and
(b) The functions
and values of the impacted wetland or tidal waters.
(2) Exceptions.
The Department may approve exceptions to replacement by class and function if the
applicant demonstrates, in writing, that the alternative CWM:
(a) Replaces
functions and values that address problems (such as flooding) that are identified
in a watershed management plan or water quality management plan;
(b) Replaces
important wetland or tidal waters types (Cowardin/HGM) and functions and values
disproportionately lost in the region;
(c) Replaces
rare or uncommon plant communities appropriate to the region, as identified in the
most recent Oregon Natural Heritage Program plant community classification; or
(d) Is for
the replacement of a non-tidal wetland or tidal water type that is technically impracticable
to replace. Upon demonstration of such to the satisfaction of the Department, the
Department may require re-consideration of alternatives to ensure that all practicable
opportunities to avoid and minimize impacts have been reasonably incorporated into
the project.
(3) Conversion
of Wetland to Tidal Waters. CWM involving the conversion of wetland to tidal waters
may not be approved where the wetland proposed for conversion provides a high level
of functionality, provides locally important functions or values, or supports listed
species or rare plant community or communities.
(4) CWM Ratios.
(a) The purpose
of a CWM ratio is to:
(A) Ensure
that the total area of the state’s wetland and tidal waters resource base
is maintained; and
(B) Replace
wetland and tidal waters functions that may be size dependent.
(b) Ratios
will not be used as the sole basis for demonstrating functional replacement.
(c) Except
as otherwise provided in this section, the following minimum ratios must be used
in the development of CWM plans:
(A) One acre
of restored wetland or tidal waters for one acre of impacted wetland or tidal waters
(1:1);
(B) One and
one-half acres of created wetland or tidal waters for one acre of impacted wetland
or tidal waters (1.5:1);
(C) Three
acres of enhanced wetland or tidal waters for one acre of impacted wetland or tidal
waters (3:1);
(D) Two acres
of enhanced cropped wetland for one acre of impacted wetland (2:1). Cropped wetland
is converted wetland that is regularly plowed, seeded and harvested in order to
produce a crop for market. Pasture, including lands determined by the Natural Resources
and Conservation Service to be "farmed wetland pasture," is not cropped wetland;
and
(E) There
is no established ratio for CWM using preservation. The acreage needed under preservation
will be determined on a case-by-case basis by the Department.
(d) The Department
may double the minimum ratio requirements for project development affecting existing
CWM sites.
(e) The Department
may increase the ratios when:
(A) Mitigation
is proposed to compensate for an unauthorized removal-fill activity; or
(B) Mitigation
will not be implemented in the same construction season as the authorized impact.
(f) At the
option of the applicant, CWM may consist of any one or a combination of the following
CWM ratios for commercial aggregate mining operations where both the mining operation
and the CWM are conducted on converted wetlands (not including pasture):
(A) One acre
of wetland and open water habitat, with depths less than 35 feet, for one acre of
wetland impacted;
(B) Three
acres of wetland and open water habitat, with depths greater than 35 feet, for one
acre of wetland impacted; and
(C) One acre
of a combination of restored, created or enhanced wetland and upland, comprising
at least 50 percent wetland, for one acre of wetland impacted.
(g) The Department
may also apply the following CWM measures for commercial aggregate mining operations
on converted wetland (not including pasture):
(A) Allow
for staged CWM or mined land reclamation required under ORS 517.700; or
(B) Allow
the applicant, upon approval by the Department, to pay the entire cost of CWM according
to the following criteria:
(i) On an
annual basis for a period not to exceed 20 years over the life expectancy of the
operation, whichever is less; or
(ii) On an
annual basis over time at a monetary rate per cubic yard or ton of aggregate material
removed annually from the site.
(h) Alternative
methods may be used for mitigation crediting and/or impact debiting by applying
a wetland function-based accounting method approved by the Department.
(5) Timing
of CWM Implementation. CWM earthwork must be completed within the same construction
season as the authorized removal-fill project. The Department may approve non-concurrent
CWM if the applicant clearly demonstrates, in writing, the reason for the delay
or that there is benefit to the water resources in doing so.
(6) CWM in
Areas with High Natural Resource Value. CWM projects must not degrade areas with
existing high natural resource values (e.g., forested uplands).
(7) CWM Hydrology
Must Be Self-Sustaining. CWM must not rely on features or facilities that require
frequent and regular long-term maintenance and management. For example, permanent
water control structures may be acceptable, whereas pumping from a groundwater well
to provide adequate hydrologic support is not acceptable.
(8) Multiple
Purpose CWM. CWM sites may fulfill multiple purposes including storm water retention
or detention, provided:
(a) All other
CWM requirements are met;
(b) No alteration
or management is required to maintain the functionality of the stormwater facility
that would degrade the wetland functions and values;
(c) The stormwater
entering the CWM site has been pretreated to the level necessary to assure that
state water quality standards and criteria are met in the mitigation area;
(d) Construction
of storm water facilities in existing wetlands meets the criteria for enhancement;
(e) Construction
of the CWM site will not adversely affect adjacent wetlands or tidal waters;
(f) Construction
of the CWM site will not significantly change pre-development hydrologic conditions,
significantly increase peak flows or significantly change the velocity to receiving
streams; and
(g) Stormwater
discharges to existing or CWM wetlands will not result in hydrologic conditions
that impair vegetation or substrate characteristics necessary to support wetland
functions.
(9) Special
Requirements for Enhancement as CWM. CWM enhancement must conform to the following
additional requirements. Enhancement must:
(a) Be conducted
only on degraded wetlands or tidal waters;
(b) Result
in a demonstrable net gain in functions and values at the CWM site as compared to
those functions and values lost or diminished as a result of the project and those
functions and values that already exist at the CWM site;
(c) Not replace
or diminish existing wetland or tidal waters functions and values with different
functions and values unless the applicant justifies, in writing, that it is ecologically
preferable to do so;
(d) Not consist
solely of the conversion of one HGM or Cowardin class to another;
(e) Identify
the causes of wetland or tidal waters degradation at the CWM site and the means
by which the CWM plan will reverse, minimize or control those causes of degradation
in order to ensure self-sustaining success; and
(f) Not consist
solely of removal of non-native, invasive vegetation and replanting or seeding of
native plant species.
(10) Preservation
as CWM. Preservation of wetlands or tidal waters may be used for meeting the CWM
requirement when the wetland or tidal waters site proposed for preservation is demonstrated
to be under threat of destruction or adverse modification and one of the following
applies:
(a) The preservation
site supports a significant population of rare plant or animal species;
(b) The preservation
site is a rare wetland or tidal waters type (S1 or S2 according to the Oregon Natural
Heritage Program);
(c) The preservation
site is a native, mature forested wetland; or
(d) The preservation
site, with existing and ongoing management, is in good condition and is highly functioning
(as determined using a Department-approved assessment method). Preservation must
also accomplish one or more of the following:
(A) Serves
a documented watershed need; or
(B) Preserves
wetland types disproportionately lost in the watershed.
(11) Preservation
as the Preferred CWM Option. Preservation may be accepted as the preferred CWM option
when the lost or diminished functions and values are exceptionally difficult to
replace. Examples of such waters include, but are not limited to, vernal pools,
fens, bogs and tidal spruce wetlands, as defined by the Oregon Natural Heritage
Program.
(12) Special
Case; CWM for Linear Projects in Multiple Watersheds. The Department will review
and approve CWM for linear projects in multiple watersheds (e.g., roads or utility
lines with wetland or tidal waters impacts) on a case-by-case basis and may establish
other CWM requirements than those explicitly set forth in these rules.
Stat. Auth.: ORS
196.825 & 196.600-196. 692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0695
Administrative
Protection of CWM Sites
(1) Administrative
Protection Instruments. All CWM sites must be protected from adverse impacts in
perpetuity with appropriate protection instruments.
(2) Protection
Instrument Standards. Protection instruments must meet the following standards:
(a) The permanent
protection instrument must prohibit any uses of the CWM site that would violate
conditions of the removal-fill authorization or otherwise adversely affect functions
and values provided by the CWM site;
(b) Any proposed
revisions to the protection instrument require prior approval from the Department;
(c) A conservation
easement may only be granted to qualifying parties set forth in ORS 271;
(d) Conservation
easements must provide the Department a third party right-of-enforcement; and
(e) Must
include a Right of Entry or an access easement, conveyed to the Department, and
recorded on the deed for all CWM sites on non-public lands, using a template provided
by the Department.
(3) Publicly
Owned CWM Sites. For publicly owned CWM sites, administrative protection may be
provided through an adopted management plan. Such plan will provide for appropriate
protection of the CWM site as determined by the Department.
Stat. Auth.: ORS
196.825 & 196.600-196. 692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0700
Financial
Security for CWM Sites
(1) Purpose. Financial
security instruments are required for CWM sites as a guarantee that the CWM will
be constructed, monitored and maintained in accordance with removal-fill authorization
requirements.
(2) Exceptions.
Financial security Instruments are required for CWM projects except in the following
circumstances:
(a) No financial
security instrument is required for projects conducted by government agencies;
(b) The Department
may waive the requirement for a financial security instrument for impacts 0.20
of an acre or less; and
(c) Financial
security instruments are not required when CWM is satisfied by purchase of credits
from a wetland mitigation bank, an in-lieu fee program or payment in-lieu mitigation.
(3) Types
of Financial Security Instruments. The Department may allow the following types
of financial security instruments:
(a) Surety
bonds executed by the permit holder and a corporate surety licensed to do business
in Oregon;
(b) Assignment
of deposit must be issued by a bank licensed to do business in Oregon, assigned
to the Department, and upon the books of the bank issuing such certificates;
(c) Letters
of credit issued by a bank authorized to do business in the State of Oregon that
are irrevocable prior to release by the Department; and
(d) Such
other financial instrument as the Department deems appropriate to secure the financial
commitment of the applicant to fulfill the success requirements of the CWM.
(4) Financial
Security Form. The applicant must file the financial security instrument or instruments
on a form or forms prescribed and furnished by the Department. Financial security
instruments must be made payable to the Department and must be submitted to the
Department prior to permit issuance or prior to release of credits from a mitigation
bank.
(5) Commencement
of the Liability Period. The period of liability will begin at the time of authorization
issuance. The liability period must be renewed until the Department deems the CWM
to be complete and the Department releases the permittee from any further monitoring
requirements.
(6) Determining
the Amount. For issuance of an authorization requiring a financial security, the
Department will set the amount of the financial security instrument equal to either
the current cost of mitigation bank credit(s) within a service area covering the
removal-fill site, or the current cost of payment in-lieu mitigation, whichever
is greater. For mitigation banks, the amount must be sufficient to ensure a high
level of confidence that the mitigation will be successfully completed.
(7) Financial
Security Instrument Replacement. The Department may allow a permit holder to replace
an existing financial security instrument with another if the total liability is
transferred to the replacement. The Department will not release an existing financial
security instrument until the permit holder has submitted and the Department has
approved the replacement.
(8) Financial
Security Instrument Release. The Department will authorize release of the financial
security instrument when the CWM meets the requirements of the CWM plan and the
conditions of the removal-fill authorization. The permit holder must file a request
with the Department for the release of all or part of a financial security instrument.
The request must include:
(a) The precise
location of the CWM area;
(b) The permit
holder’s name;
(c) The removal-fill
authorization number and the date it was approved;
(d) The amount
of the financial security instrument filed and the portion proposed for release;
and
(e) A description
of the results achieved relative to the permit holder’s approved CWM plan.
(9) Forfeiture.
The Department may declare forfeiture of all or part of a financial security instrument
for any project area or an increment of a project area if CWM activities fail to
meet success criteria, the permittee fails to provide monitoring reports, or fails
to follow other permit conditions related to mitigation. The Department will identify,
in writing, the reasons for the declaration.
(10) Determination
of Forfeiture Amount and Use of Funds. The permit holder must forfeit the amount
of the outstanding liability in the financial security instrument. The Department
will either use the funds collected from the security forfeiture to complete the
CWM or deposit the proceeds in the Oregon Removal-Fill Mitigation Fund.
Stat. Auth.: ORS
196.825 & 196.600-196. 692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0705
Requirements for All CWM
Plans
(1) CWM Plan Content.
CWM Plan detail must be commensurate with the size and complexity of the proposed
mitigation. A CWM Plan is not required for proposed CWM by means of using credits
from an approved bank, advance mitigation site, in-lieu fee mitigation or payment
in-lieu mitigation. A CWM plan for permittee responsible CWM must include the sections
listed below.
(a) CWM plan
overview, including:
(A) CWM ecological
goals and objectives;
(B) The CWM
concept in general terms including a description of how the plan, when implemented,
will replace the functions and values of the impacted non-tidal wetland or tidal
waters;
(C) Mitigation
site acreage by method(s) of mitigation proposed (restoration, creation and enhancement)
and by proposed HGM and Cowardin classification for each method; and
(D) Summary
of proposed net losses and gains of wetland or tidal waters functions and values.
(b) CWM site
ownership and location information:
(A) CWM site
ownership information (name, address, phone). If this is different from the applicant,
copies of legal agreements demonstrating permission to conduct the CWM and willingness
of the property owner to provide long-term protection are required;
(B) Legal
description (Township, Range, Quarter and Quarter-quarter Section and tax lot or
lots); and
(C) CWM site
location shown on a USGS or similar map showing the CWM site location relative to
the impacted site, longitude and latitude, physical address, if any (e.g., 512 Elm
Street), and road milepost (e.g., mp 25.21).
(c) A description
of how the proposed CWM addresses each of the principal objectives for CWM as defined
in OAR 141-085-0680.
(d) CWM site
existing conditions, including the following, as applicable.
(A) If wetlands
or tidal waters exist on the CWM site, then the following information must be provided:
(i) A wetland
determination/delineation report pursuant to OAR 141-090 for existing wetlands on
the CWM site (or for tidal waters, any wetlands above highest measured tide elevation),
as necessary to confirm acreage of proposed CWM;
(ii) Identification
of HGM and Cowardin class(es) and subclass(es) of all wetlands and tidal waters
present within the CWM site;
(iii) A general
description of the existing and proposed water source, duration and frequency of
inundation or saturation, and depth of surface water for wetlands or tidal waters
on the CWM site. This information must include identification of any water rights
necessary to sustain the intended functions. When water rights are required, the
applicant must provide documentation that the water right has been secured prior
to issuance; and
(iv) Plans
that involve enhancement must include identification of the cause(s) of degradation
and how the plan will reverse it and sustain the reversal.
(B) A description
of the major plant communities and their relative distribution, including the abundance
of exotic species within the CWM site and associated buffers.
(C) Approximate
location of all water features (e.g., wetlands, streams, lakes) within 500 feet
of the CWM site.
(D) Any known
CWM site constraints or limitations.
(E) Plans
for CWM by means of restoration must include documentation sufficient to demonstrate
that the site was formerly, but is not currently, a wetland or tidal water.
(e) A functions
and values assessment. A summary of the assessment must be placed in the body of
the CWM plan, and supporting data sheets or assessment model outputs must be placed
in an appendix of the CWM Plan.
(f) CWM drawings
and specifications, including:
(A) Proposed
construction schedule;
(B) Scaled
site plan(s) showing CWM project boundaries, existing and proposed wetland or tidal
waters boundaries, restoration, creation and enhancement areas, buffers, existing
and proposed contours, cross-section locations, construction access location and
staging areas;
(C) Scaled
cross sections showing existing and proposed contours and proposed water depths;
(D) Plant
list for each Cowardin and HGM class at the CWM site (include scientific names and
wetland indicator status);
(E) Schematic
of any proposed water control structures; and
(F) For CWM
sites involving tidal waters, plan views and cross sections must show relevant tidal
elevations relative to mean lower low water (MLLW) using the nearest local tidal
datum. The elevation of MLLW must be referenced to the North American Vertical Datum
1988 (NAVD88).
(g) Proposed
CWM performance standards. The applicant may propose to use applicable pre-defined
performance standards as approved by the Department, or may provide CWM site-specific
performance standards that:
(A) Address
the proposed ecological goals and objectives for the CWM;
(B) Are objective
and measurable; and
(C) Provide
a timeline for achievement of each performance standard.
(h) A description
of the proposed financial security instrument. The Department will determine the
amount of security required. A final financial security instrument will be required
prior to permit issuance unless otherwise approved by the Department.
(i) A monitoring
plan including specific methods, timing, monitoring plot locations, and photo-documentation
locations.
(j) A long-term
maintenance plan describing:
(A) How the
applicant anticipates providing for maintenance of the CWM site beyond the monitoring
period to ensure its sustainability (e.g., maintenance of any water control structures,
weed management, prescribed burning, and vandalism repair);
(B) Expected
long-term ownership of the CWM site and the anticipated responsible party or parties
for long-term maintenance; and
(C) How the
maintenance activities are anticipated to be funded.
(k) The CWM
plan must identify the long-term protection instrument for the CWM site in accordance
with OAR 141-085-0695.
(l) If permittee-responsible
mitigation is proposed and the application for a permit or authorization is submitted
on behalf of a closely held corporation, limited partnership, limited liability
company or trust, the Department will require from each shareholder or stockholder,
limited partner, member, trustee, current beneficiary or other principal:
(A) A joint
and several personal guarantee securing compliance with mitigation obligations;
and
(B) A written
agreement to make all reasonable efforts to maintain the business entity in active
status until all mitigation obligations have been satisfied.
(C) For
the purpose of Subsection (L) of this section, a "closely held corporation" is one
in which all shares are held by less than five individuals.
(m) The Department
may require additional information as necessary to determine the appropriateness,
feasibility and sustainability of the proposed CWM and at any time prior to the
permit decision may make recommendations for improvements to CWM plans.
(2) CWM Plans
Using Preservation. A CWM plan using preservation must include:
(a) Functions
and values assessment of the removal-fill site and site proposed for preservation;
(b) Maps
showing the preservation site including all delineated wetlands or tidal waters
to be conserved;
(c) Documentation
demonstrating that the proposed preservation site meets the requirements of OAR
141-085-0690(10);
(d) The surrounding
land uses and an analysis of both the short-term and long-term known and probable
effects of those land uses and activities on the preserved wetlands or tidal waters;
(e) Measures
that may be necessary to minimize the effects of surrounding land uses and activities
on the preserved wetlands or tidal waters;
(f) Identification
of the party or parties responsible for long-term protection of the preservation
site;
(g) A long-term
protection instrument;
(h) A long-term
management plan with a funding mechanism that addresses the specific management
needs to optimize and maintain functionality and ecological sustainability of the
wetlands or tidal waters to be preserved; and
(i) The protection
instrument, management plan and funding mechanism must be in place prior to issuance
of the authorization.
(3) Authorization
Conditions for CWM Plans.
(a) The Department
will review the CWM plan for sufficiency. In approving the final CWM plan, the Department
may impose authorization conditions necessary to ensure compliance.
(b) The approved
CWM plan becomes an enforceable part of the removal-fill authorization. In the event
of conflict between CWM Plan provisions and removal-fill authorization conditions,
the authorization conditions prevail.
(c) Regardless
of the expiration date of the authorization, all compensatory mitigation conditions
remain enforceable until the Department declares that the CWM has been successful.
(d) The permit
holder cannot delegate responsibility for CWM requirements, unless the Department
has officially transferred the mitigation obligation.
(e) If applicable,
the Department will approve necessary draft administrative protection instrument(s)
prior to permit issuance. A copy or copies of the recorded administrative protection
instrument(s) must be submitted to the Department with the post construction report
unless the Department approves another schedule.
(f) For authorizations
involving payment in-lieu mitigation as CWM:
(A) The individual
removal-fill permit or letter of authorization for an activity will not be issued
until payment has been made as approved by the Department; and
(B) Once
an authorized removal-fill permit activity has begun, the payment is non-refundable.
(g) For authorizations
involving a mitigation bank or in-lieu fee credit purchase, proof of the purchase
is required prior to issuance of the authorization.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600-196.692 & 196.800-196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10;
DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0710
Monitoring Requirements for CWM
(1) Purpose. The
purpose of the CWM monitoring requirement is to provide information for the Department
to:
(a) Determine
whether the CWM complies with the conditions of the authorization and whether the
CWM has achieved its stated goals, objectives and performance standards;
(b) Determine
whether the CWM is replacing wetland and tidal waters area and functions and values;
and
(c) Provide
information for removal-fill program monitoring.
(2) Monitoring
Reports. The permit holder must monitor the CWM site and provide to the Department
monitoring reports commensurate with CWM site size and complexity. Those reports
must include at minimum:
(a) A post
construction report demonstrating as built conditions and discussing any variation
from the approved plan. Unless waived by the Department, the post construction report
must be submitted within 90 calendar days of completing grading;
(b) An annual
written monitoring report that includes all data necessary to document compliance
with CWM conditions and performance standards; and
(c) A sufficient
number of permanent monitoring points to provide a representative sampling of the
CWM site and buffers.
(3) Duration.
Monitoring must be conducted for a minimum period of five growing seasons after
the completion of all the initial plantings, unless otherwise specified by the Department.
(4) Final
Monitoring Report Requirements. To determine whether the CWM project will meet acreage
and functional replacement requirements, the Department must receive by not later
than the fifth year of the monitoring program the following additional documentation:
(a) Mapping
of the CWM site boundary and verification of quantities of actual restoration, creation
and enhancement acreages achieved by HGM and Cowardin class; and
(b) Comparison
of actual functions and values attained at the CWM site compared to the predicted
functions and values for the CWM site identified in the CWM Plan.
(5) Additional
Monitoring. The Department may require modifications to the CWM plan, as well as
require additional monitoring, if the Department determines that the CWM fails to
meet performance standards, replacement acreage requirements, or replace functions
and values.
(6) Release
From Monitoring Obligations. When the Department determines that the CWM complies
with the conditions of the removal-fill authorization, the Department will notify
the permit holder in writing that additional monitoring is not required.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0715
Mitigation
for Temporary Impacts
Applicants for projects
that involve temporary impacts to waters of this state must provide a rehabilitation
plan for rectification of temporary impacts. Rectification must include re-establishment
of pre-existing contours and pre-existing vegetation. A monitoring plan to confirm
the reestablishment of wetland or tidal waters, or reestablishment of vegetation
may be required.
Stat. Auth.: ORS
196.825 & 196.600-196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0720
Mitigation Banking Purpose, Applicability and Policies
(1) Purpose and Applicability. These rules describe the requirements to establish and operate mitigation banks, which can be used to compensate for impacts to waters of this state. These rules pertain to mitigation banks that compensate for impacts to all types of waters of this state.
(2) Coordination with the Corps of Engineers. The Department will coordinate with and participate on the Interagency Review Team as a co-chair agency with the Corps of Engineers to establish mitigation banks that also meet the federal regulatory requirements, as appropriate.
(3) Development of Mitigation Banks is Encouraged. The Department encourages the development and will facilitate the expeditious approval of mitigation banks.
(4) Compensation for Expected or Historical Losses to Aquatic Resources. Mitigation banks must be located and designed to compensate for expected or historical losses to aquatic resources by:
(a) Maintaining regional functions and values of aquatic resources in their service area;
(b) Matching the demand for credits with losses to the water resources of this state; and
(c) Meeting other ecological or watershed needs as determined by the Department.
(5) Banks Must Meet Principal Objectives for CWM: Mitigation banks established and operated under these rules specifically for wetlands must meet the principal objectives of compensatory wetland mitigation in OAR 141-085-0680.
(6) Subject to All CM Rules. Mitigation banks are subject to all rules governing CWM and CNWM, as applicable.
(7) Collaboration with Public Resource Protection and Restoration Programs. The Department encourages collaboration with voluntary watershed enhancement projects in conjunction with, but supplemental to, the generation of compensatory mitigation credit, when greater ecological gains can be recognized. Except where public funding is specifically authorized to provide compensatory mitigation, or the Department otherwise approves the use or accounting of such funds, funds dedicated to non-compensatory aquatic resource restoration or preservation projects will not generate transferable mitigation credit.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0725
Process for
Establishing Mitigation Banks
(1) Pre-prospectus Meeting with the
Department. To initiate a mitigation bank, a prospective bank sponsor must request
a meeting with the Department for initial review of the mitigation concept, site
suitability, and content of the Prospectus.
(2) Department Review of
Draft Documents, Generally. The process for establishing a mitigation bank involves
the development of a Prospectus and Mitigation Bank Instrument (MBI) in consultation
with an interagency review team (IRT). In an effort to supply the IRT with complete
documents that meet the requirements of these rules, multiple drafts and completeness
reviews may be required.
(3) Submittal of the Prospectus.
After discussion of the mitigation concept with the Department, a mitigation bank
sponsor must submit a Mitigation Bank Prospectus. A Mitigation Bank Prospectus must
include:
(a) Site information including
location, size, ownership, soil mapping, and recent air photo;
(b) The objectives of the
proposed mitigation bank;
(c) How the mitigation bank
will be established and operated, in general terms;
(d) The proposed service
area;
(e) A market or other analysis
that demonstrates the general need for the mitigation bank;
(f) A description of the
technical feasibility of the proposed mitigation bank;
(g) The proposed ownership
arrangements and long-term management strategy for the mitigation bank;
(h) How the mitigation bank
addresses each of the principal objectives for CWM listed in OAR 141-085-0680; and
(i) Names and addresses of
all landowners within 500 feet of the bank.
(4) Prospectus Completeness
Review. Within 30 calendar days of the Department's receipt of a Prospectus, the
Department will conduct an initial review to determine if the Prospectus is complete
and the information contained in the Prospectus adequately addresses the requirements.
Following the Prospectus completeness review, the Department will inform the applicant
of one of the following findings:
(a) The Prospectus is complete
and will proceed to the public notice; or
(b) The Prospectus is incomplete.
(5) Incomplete Prospectus.
If the Department determines that the Prospectus is incomplete, the Department will
notify the sponsor in writing and list the missing or deficient information. The
Department will take no action on the incomplete Prospectus until the required information
is submitted. The sponsor must resubmit the entire amended Prospectus for reconsideration,
unless instructed by the Department to do otherwise. Submission of a new or amended
Prospectus starts a new 30 calendar day initial review period.
(6) Department May Decline
to Participate. If a mitigation bank sponsor cannot demonstrate the need for the
mitigation credits or the technical feasibility and ecological desirability of the
bank, the Department may decline to participate in its development.
(7) Public Notice of Prospectus.
Upon determining that a Prospectus is sufficient, the Department will issue a public
notice entitled, "Intent To Create A Mitigation Bank." The Department will:
(a) Post the notice on the
Department’s web site for 30 calendar days;
(b) Send the notice to city
and county planning departments, affected state and federal natural resource and
regulatory agencies, adjacent landowners, conservation organizations and other interested
persons requesting such notices;
(c) Briefly describe the
proposed mitigation bank and reference the Prospectus provided by the bank sponsor;
and
(d) Solicit comments for
30 calendar days from the date of the public notice.
(8) Consideration of Comments
Received During the Public Notice Period. All comments received will be provided
to the bank sponsor and to the IRT. If comments are not received from an interested
party within the 30-day comment period, the Department will assume the entity does
not desire to provide comments.
(9) Establishment of an Interagency
Review Team (IRT) and the Role of the IRT. The Department will invite participants
to serve on an IRT within 30 calendar days of the date of the public notice. The
Department will serve as chair (or co-chair) of the IRT.
(a) The Department will invite
each of the following agencies to nominate a representative for an IRT:
(A) Oregon Department of
Environmental Quality;
(B) Oregon Department of
Fish and Wildlife;
(C) Oregon Department of
Land Conservation and Development;
(D) U.S. Fish and Wildlife
Service;
(E) U.S. Environmental Protection
Agency;
(F) Soil and Water Conservation
District; and
(G) Local Government Planner,
or equivalent.
(b) The Department may appoint
other members of the IRT based on the nature and location of the project, particular
interest in the project by persons or groups, and/or any specific expertise that
may be required by the Department in development of the MBI.
(c) The IRT acts in an advisory
capacity to the Department in the establishment and operation of mitigation banks.
The IRT may:
(A) Review and provide input
to the Department on the Prospectus and the comments received during the public
notice for use in the development of the MBI;
(B) Review and provide input
on the draft MBI;
(C) Review the performance
of the bank to assist the Department in determining compliance with the MBI; and
(D) Provide input on adaptive
management of the mitigation bank, as necessary, to achieve the ecological goals
and objectives.
(10) Mitigation Bank Instrument
(MBI). After consideration of the public comments and input from the IRT, the bank
sponsor must develop a Draft Mitigation Bank Instrument (MBI) for submittal to the
Department. If the sponsor intends that the MBI serve as the permit application,
the sponsor must notify the Department of this intention at the time of submittal
of the first draft MBI. If an MBI is used in place of a permit application, in addition
to all requirements below, it must meet the requirements for fees, content, and
review procedures as specified in OAR 141-085-0545 through 141-085-0565. The draft
MBI must contain:
(a) If the proposed bank
is for wetland mitigation, all requirements for CWM plans per OAR 141-085-0680 through
141-085-0710; and
(b) The applicant must also
provide the following information:
(A) The proposed service
area for the bank, including a map clearly showing recognizable geographic place
names and watershed boundaries;
(B) Demonstration of the
need for the bank as shown by past removal-fill activities, projected demographics
for the proposed service area, statements of expected activities from the local
planning agency, and like documentation;
(C) A description of the
projected wetland losses in the service area by HGM and Cowardin wetland classes;
(D) Proof of ownership including
a title report and disclosure of any and all liens or easements on the bank site.
If the sponsor does not own the land, the MBI must contain explicit legal and recordable
permission granted by the landowner to perpetually dedicate the land upon which
the proposed bank and any associated buffer is located;
(E) A description of the
methods and results of the evaluation of ecological stressors, such as contaminants,
present at the bank site that could compromise the wetland functions;
(F) Description of the location
and plant community composition of reference site(s), unless an HGM reference data
set is used;
(G) Description of the method(s)
used to determine the number of credits to be created at the proposed bank, as well
as those that will be used to account for and report credit and debit transactions;
(H) The proposed credit release
schedule linked to achievement of specific performance standards;
(I) Detailed contingency
plans describing how project deficiencies or performance failures will be corrected,
including assignment of responsibilities for failures such as floods, vandalism,
damage by pests and wildlife, invasion by weedy vegetation, etc.;
(J) Land use affidavit;
(K) A statement indicating
when each of the conditions of the MBI will terminate, unless they are perpetual
in nature; and
(L) A draft interagency bank
instrument agreement following the current template document provided by the Department.
Exceptions to the template must be approved in writing by the Department.
(11) Review of the Draft
MBI. Within 30 calendar days of the Department's receipt of a draft MBI, the Department
will conduct an initial review to determine if the MBI is complete and the information
contained in the MBI adequately addresses the requirements. Following the review,
the Department will inform the sponsor of its findings, either:
(a) The draft MBI is complete
and will proceed to the IRT review process; or
(b) The draft MBI is incomplete.
(12) Incomplete Draft MBI.
If the Department determines that the draft MBI is incomplete or deficient, the
Department will notify the sponsor in writing and list the missing or deficient
information. The Department will take no action on the incomplete draft MBI until
the required information is submitted. The applicant must resubmit the entire draft
MBI for reconsideration, unless instructed by the Department to do otherwise. Submission
of a new or amended draft MBI starts a new 30 day review period.
(13) IRT Review of the Draft
MBI. Upon notification that the draft MBI is complete, the sponsor must provide
copies to the IRT for review. At the next available IRT meeting, the IRT will review
and discuss the draft MBI and identify any issues that need to be resolved prior
to finalizing the MBI. IRT meetings will be held as necessary to resolve issues
identified by the co-chairs.
(14) Preparation of the Final
MBI. When revisions have been completed and issues identified through the IRT process
have been resolved, the sponsor must submit a final MBI to the Department and IRT
members.
(15) Final Approval of the
MBI. Within 30 calendar days of receipt of the final MBI, the Department will notify
the sponsor and the IRT whether the agency will approve the MBI.
(16) Appeal of Department
Decision. Appeals of the Department decision to affirm or deny mitigation bank approval
will be administered according to OAR 141-085-0575.
(17) Construction Timing.
At their own risk, a sponsor may begin construction of a bank before approval of
the final MBI if the sponsor:
(a) Provides the Department
with detailed documentation of the baseline conditions existing at the proposed
site(s) of the bank; and
(b) Receives written consent
from the Department before undertaking any construction. However, such consent from
the Department does not exempt the sponsor from having to apply for, and obtain
a removal-fill permit, if required. Written consent from the Department recognizes
the sponsor's intent to create a bank but does not guarantee subsequent approval
of the MBI by the Department. The Department assumes no liability for the sponsor's
actions.
Stat. Auth.: ORS 196.825 & 196.600-196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0730
Establishment of Mitigation Credits
(1) Credit Options. Credits can be established by using:
(a) The minimum mitigation ratios as stated in OAR 141-085-0690(4); or
(b) By applying a function based credit accounting method approved by the Department. Credits within a bank are determined by the difference between the baseline conditions of the bank prior to restoration, enhancement or creation activities, and the increased functions and values of the water resources of this state that result, or are expected to result, from those activities.
(2) Bonus Credits. Additional credits beyond those established in an approved MBI may be released after five consecutive years in which the mitigation wetland meets all performance standards:
(a) For those bank credits using the 1.5:1 ratio for wetland creation, or a function based credit accounting method approved by the Department, additional credits may be recognized by the Department when the total number for wetland credits for such area, including the initial release and these additional credits, does not exceed a 1:1 ratio by acreage; or
(b) Bonus credits may be recognized, at the discretion of the Department in consultation with the IRT, to cover the reasonable costs of the addition of long-term stewardship provisions to existing banks that were approved without such measures.
(3) Buffer Area Credits. Credits may be granted on an area basis for upland buffers at the discretion of the Department. Such buffers may be essential to protect the functions of a bank from potentially adverse effects of adjacent land uses, and will be subject to the same site protections as the bank.
(4) Credits for Non-Wetland Areas. The Department may recognize wetland credits for improvement of non-wetlands such as in-stream channel habitat, riparian floodplains, non-wetland inclusions in wetland/upland mosaics, and other ecosystem components that provide ecological benefits to the larger wetland bank.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0735
Release,
Use and Sale of Mitigation Credits
(1) Initial Release of Credits Must
Be Specified in the MBI. The maximum number of credits that may be released for
sale in advance of achieving performance standards will be clearly specified in
the MBI. In no case may this amount exceed 30 percent of the total credits anticipated
for each phase of bank construction. Advance releases require a commensurate financial
security per OAR 141-085-0700.
(2) Release of Credits Must
Be in Compliance with MBI. The Department will not allow the sale or exchange of
credits by a mitigation bank that is not in compliance with the terms of the MBI,
the Removal-Fill Law, and in the case of a wetland mitigation bank, all applicable
rules governing CWM. The Department may consult with the IRT in order to determine
noncompliance and appropriate remedies, including enforcement action. The Department
may, in consultation with the IRT, modify the credit release schedule, including
reducing the number of credits or suspending credit transfers, when necessary to
ensure that all credit transfers are backed by mitigation projects with a high probability
of meeting performance standards.
(3) Sales to Permit Applicants.
After credits have been released to the bank sponsor, they may be sold to permit
applicants upon approval by the Department that such credits will satisfy the mitigation
obligation of a specific permit, or to resolve an enforcement case. Each credit
sale transfers the mitigation obligation from the permit applicant to the sponsor.
(4) Sales to Public Benefit
Corporations or Public Bodies. At the request of a mitigation bank sponsor, the
Department may authorize the withdrawal of mitigation bank credits by a public benefit
corporation as defined in ORS 65.001 or a public body. Such entities will be designated
by the Director for the purpose of reserving credits for future use in accordance
with this subsection. The Director will manage such transactions to ensure that
each credit is used no more than once to satisfy a use in accordance with this section.
Mitigation Banks must report every credit sale to the Department and will provide
an annual credit ledger.
(5) The Department May Purchase
Bank Credits. Funds from the Oregon Removal Fill Mitigation Fund may be used to
purchase approved bank credits where such purchases will provide appropriate compensatory
mitigation.
(6) Records and Reporting.
The Department will maintain a record of credit releases and withdrawals for each
active wetland mitigation bank.
Stat. Auth.: ORS 196.825 & 196.600-196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 1-2011, f. &
cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0740
Authorization for Mitigation Banks
(1) Authorization Requirement. Bank sponsors must obtain a removal-fill permit for any removal-fill necessary to create a proposed bank in jurisdictional areas. At the discretion of the Department, the MBI may serve as the application if complete pursuant to OAR 141-085-0550, and may also serve as the Department's authorization. If the Department accepts the MBI as the application for a removal-fill permit, the bank sponsor must pay the applicable fee for a removal-fill application.
(2) Baseline Conditions Must Be Approved Prior to Construction. When removal-fill permits are not required to establish a mitigation bank, the Department will approve baseline conditions prior to construction.
(3) MBI Constitutes a Department Order. If a removal-fill permit is not required to construct a mitigation bank, the Department will consider the fully executed MBI an enforceable order.
(4) Draft MBI May Be Circulated for Public Notice. For mitigation banks that do not require a permit for construction, or for such banks that the Department elects to allow the MBI to serve as the permit application, a 15-calendar day public notice will be provided to the public of the Department’s intent to approve the bank. The Department may elect to circulate a public notice of the MBI according to OAR 141-085-0560. If an MBI is used in place of a removal-fill permit application, it must meet the requirements for fees, content, and review procedures as specified in OAR 141-085-0545 through 141-085-0565.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0745
In-Lieu Fee Mitigation
The Department may approve the use of in-lieu fee mitigation as a category of the mitigation banking program (OAR 141-085-0720 through 141-085-0740).
(1) Applicability. In-lieu fee mitigation involves the payment of funds to an approved sponsor to satisfy compensatory mitigation requirements for impacts to waters of this state. In-lieu fee mitigation differs from other forms of mitigation in that advanced credits can be released upon approval of a program Instrument, before Department approval of the mitigation site.
(2) Policies. In-lieu fee mitigation is subject to all rules governing mitigation banking (OAR 141-085-0720 through 141-085-0745), as applicable.
(3) Implementation. The Department will establish a method for implementing in-lieu fee mitigation, including, but not limited to the following elements:
(a) Additional information required for a program instrument outlining the operation and use of an in-lieu fee program, including, but not limited to a planning framework for identifying and securing mitigation sites within the defined service area, proposed advance credit release and justification, and accounting procedures;
(b) Timelines to implement compensatory mitigation projects to satisfy advance credit sales, and
(c) Department approval of compensatory mitigation projects proposed by the in-lieu fee sponsor.
(4) Qualifying Sponsors May Be Limited. The Department may limit the number and type of in-lieu fee sponsors.
Stat. Auth.: ORS 196.825 & 196.600 – 196.692

Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990

Hist.: DSL 1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09 cert. ef. 1-1-10. DSL 1-2011, f. & cert. ef. 3-1-11
141-085-0750
Payments to and Expenditures from
the Oregon Removal-Fill Mitigation Fund
The Department will use the Oregon Removal-Fill
Mitigation Fund to hold and disperse money collected from the Payment In-Lieu (PIL)
and In-Lieu Fee (ILF) Mitigation programs sponsored by the Department.
(1) Payments. The Department
will calculate payments for PIL and ILF based on:
(a) Actual costs and expenses
of the off-site compensatory mitigation divided by the number of credits anticipated
from the mitigation if these are known at the time of the payment, or
(b) Estimated costs and expenses
for off-site compensatory mitigation for the region of the state where the Department,
to the greatest extent practicable, determines the off-site compensatory mitigation
may be conducted.
(c) Estimated costs and expenses
for off-site compensatory mitigation will be assessed based on the formula: Payment
= [A + R + RMV + LT] ÷ mm, where:
A = Administrative Costs calculated as 10%
of the sum of R, RMV and LT;
R = Restoration Costs calculated
as the sum of all anticipated costs per unit area. Anticipated costs include but
are not limited to project design and engineering, construction, planting, and seven
years of monitoring and maintenance. These costs will be based on a biennial survey
of regional project data submitted to the Oregon Watershed Restoration Inventory,
The Conservation Registry, projects funded by the Department, and/or surveys of
restoration consulting firms and practitioners;
RMV = Real Market Value per acre
of the unimproved land for which a permit is being issued as determined by the county
assessor’s office;
LT = Long-Term Management Costs
calculated as 30% of the Restoration Costs (R),
mm = Mitigation Multiplier representing
the number of credits typically generated per unit area of mitigation conducted.
The default will be 0.33 based on the Department’s minimum ratios for compensatory
wetland mitigation.
(2) Limitations on Oregon Removal-Fill
Mitigation Fund Expenditures. The Department will expend funds from the Oregon Removal-Fill
Mitigation Fund to:
(a) Restore, enhance, create
or preserve water resources of this state (including acquisition of land or easements
as necessary to conduct restoration, enhancement, creation or preservation projects)
as compensatory mitigation to compensate, replace or preserve functions and values
lost or diminished as result of an approved project;
(b) Purchase credits from
an approved mitigation bank for the purpose of fulfilling the mitigation requirements
of an approved project;
(c) Monitor the compensatory
mitigation;
(d) Conduct site management
for the compensatory mitigation project as necessary to assure that the mitigation
is successful; and
(e) Administer the program
and fund a staff position.
(3) Geographic Limitations
of Funds Expenditures. The Department will expend funds collected under the PIL
option within the basin where the removal-fill site occurs, unless the Department
determines that this option is not feasible.
Stat. Auth.: ORS 196.825 & 196.600-196.692
Stats. Implemented: ORS 196.600-196.692
& 196.800-196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
141-085-0755
Advance Mitigation
(1) Set-Aside Excess Credits. As part
of the existing, active individual removal-fill permit application process, an applicant
may request that the Department consider that the proposed permittee-responsible
CWM (as documented in a CWM Plan prepared in accordance with OAR 141-085-0705) could
produce mitigation credits in excess of those needed to satisfy project requirements.
(2) Additional Information
Required. If the applicant desires to preserve the option of receiving additional
mitigation credit from the excess credits for future projects by the same applicant
and by up to one additional party, then the following additional information must
be submitted as a part of the applicant's CWM plan:
(a) The specific area(s)
of the CWM site that compensates for the specific permitted effect, and identification
of the specific areas of the CWM site that are proposed for credit in future projects;
(b) A table showing how much
credit, in acres under suitable mitigation ratios, is being claimed at the CWM site;
and
(c) The name of any additional
person who would use the advance credits.
(3) Applicant Assumes All
Risk. If the applicant elects to pursue this option, he/she does so completely at
his/her own risk. CWM in advance does not create the presumption that a proposed
future wetland impact will be authorized, or that the CWM will be considered suitable
CWM. A separate alternatives analysis will be required for each and every separate
individual removal-fill permit application.
(4) Monitoring Requirements.
Monitoring to determine if success criteria are met must continue for five years
or until the success criteria are achieved, whichever is longer. Such monitoring
requirements will apply to each designated mitigation area, or for the entire mitigation
site if constructed at one time.
(5) Conversion of Unused
Credits. Unused credits created by standard path advance mitigation may be converted
to alternate path mitigation credits at the discretion of the Department and in
accordance with OAR 141-085-0760.
Stat. Auth.: ORS 196.825 & 196.600-196.
692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12,
cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
Compensatory Non-Wetland
Mitigation
141-085-0765
Compensatory
Non-Wetland Mitigation (CNWM)
(1) Compensatory
Non-Wetland Mitigation (CNWM) for Waters Other Than Wetlands or Tidal Waters. The
Department will also require CNWM for unavoidable impacts to waters of this state
for waters other than wetlands or tidal waters. Such conditions may impose obligations
on the permit holder beyond the expiration of the authorization.
(2) Scope
of CNWM. CNWM will be commensurate with removal-fill impacts and may include, but
is not limited to:
(a) Offsite
or onsite enhancement, creation, restoration and preservation of water resources
of this state such as rivers, intermittent and perennial streams, lakes, ponds and
springs; and
(b) Offsite
and onsite improvements to enhance navigation, fishing and public recreation uses
of waters of this state.
(3) CNWM
Functional Assessment. When no other Department-approved functional assessment method
is available, best professional judgment may be used to assess waterway functions
and values. A written discussion of the basis of the conclusions must be provided.
The written discussion must provide a detailed rationale based upon direct measurement
or observation of the indicators for the following functions and values:
(a) Hydrologic;
(b) Geomorphic;
(c) Biological;
and
(d) Chemical
and nutrient.
(4) CNWM
Approval Standard. In order for the Department to approve compensatory mitigation
for impacts to waters of this state other than wetlands or tidal waters, the applicant
must demonstrate in writing, using a method approved by the Department, that the
compensatory mitigation plan will replace or provide comparable substitute water
resources of this state.
(5) CNWM
Conditions of Approval. The Department may require that the CNWM include:
(a) Defined
performance standards;
(b) Site
monitoring and reporting using a method approved by the Department;
(c) Administrative
protection of the CNWM site; and
(d) Financial
security.
Stat. Auth.: ORS
196.825 & 196.600 - 196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0768
Advance Aquatic Resource Plans
(1) Purpose. The purpose of an Advance
Aquatic Resource Plan is to create a flexible framework for persons to voluntarily
plan for anticipated future water resource; development conflicts within a defined
planning area; identify and characterize water resources; make necessary decisions
now to avoid and minimize those conflicts to the extent practicable; and develop
a compensatory mitigation strategy to offset the anticipated unavoidable impacts
to water resources. An approved Advance Aquatic Resource Plan is intended to inform
and streamline future removal-fill permit application processes for projects within
a defined planning area. The Advance Aquatic Resource Plan is not intended to replace
the Wetland Conservation Plan (ORS 196.668 et seq.) as a wetland conservation planning
tool where binding local land use decisions are sought.
(2) Outcomes.
(a) The Department’s
approval of an Advance Aquatic Resource Plan pursuant to this section may provide
regulatory outcomes which include, but are not limited to:
(A) Jurisdictional determinations
pursuant to OAR 141-090.
(B) Reduction in removal-fill
permit application processing timelines otherwise established by OAR 141-085 for
projects within the Advance Aquatic Resource Plan area.
(C) Modification of the application
completeness requirements otherwise established by OAR 141-085 for projects within
the Advance Aquatic Resource Plan area.
(D) Consideration of the
approved Advance Aquatic Resource Plan when applying criteria for issuance of a
permit pursuant to ORS 196.825 for projects within the Advance Aquatic Resource
Plan area.
(b) Approval of an Advance
Aquatic Resource Plan will not authorize removal-fill activity within the Plan area.
(3) Standards for Establishing
Advance Aquatic Resource Plans.
(a) Required Minimum Content.
The level of analysis required for each content element is only broadly defined
by this administrative rule. It is the Department’s intent that Advance Aquatic
Resource Plans will be a flexible tool with the level of analysis customized to
meet the specific planning goals, purpose, and needs for the defined area, and considering
the outcomes sought from the Department. An Advance Aquatic Resource Plan will include
the following minimum content unless otherwise approved in writing by the Department:
(A) Advance Aquatic Resource
Plan Sponsor. The Advance Aquatic Resource Plan will identify the person acting
as the Plan sponsor. The sponsor will: coordinate land owners and local government
participation in Plan development; coordinate with the Department and other affected
local, state and federal agencies through Plan development process; administer the
Technical Advisory Committee created pursuant to this section; and be responsible
for Advance Aquatic Resource Plan content, execution, reporting, amendments, and
renewals as may be required.
(B) Advance Aquatic Resource
Plan Goals, Purpose and Need. The Advance Aquatic Resource Plan will: establish
a comprehensive set of goals for the effort including both conservation and development
objectives; describe the purpose for developing an Advance Aquatic Resource Plan
for the defined area; identify what public need(s) the Plan seeks to fulfill; and,
describe outcomes sought from the Department by approval of the Plan.
(C) Coverage Area. The Advance
Aquatic Resource Plan will define, in text and map form, the geographic boundaries
of the Advance Aquatic Resource Plan coverage area. An Advance Aquatic Resource
Plan will not include lands planned or designated for farm or forest uses, or mixed
farm and forest uses, pursuant to goals adopted by the Land Conservation and Development
Commission under ORS 197.225.
(D) Activity Types. The Advance
Aquatic Resource Plan will describe the types of removal-fill activities or projects
intended to be addressed by the Advance Aquatic Resource Plan.
(E) Identification of Waters
of This State. Unless otherwise approved by the Department, waters of this State
within the coverage area will be identified, at a minimum, to the standards defined
in a subset of the local wetlands inventory standards and guidelines that are described
in (OAR 141-086-0180 through OAR 141-086-0240) as designated by the Department.
At the discretion of the Advance Aquatic Resource Plan sponsor and with input from
the Department, boundaries may be defined by a complete delineation pursuant to
OAR 141-090, and therefore meet requirements for future removal-fill authorizations
pursuant to (4)(c)(D) of this section.
(F) Characterization of Waters
of This State. Wetland functions and values will be evaluated using the Oregon Rapid
Wetland Assessment Protocol. Other methods may be allowed at the discretion of the
Department. Non-wetland waters of this State will be functionally assessed using
methods approved by the Department. Other ecological evaluation parameters will
be defined in consultation with the Department and Technical Advisory Committee
created pursuant to this section, depending on natural resource characteristics
of the Plan area and the defined goals, purpose and need for the Advance Aquatic
Resource Plan.
(G) Avoidance and Minimization
Strategy. The Advance Aquatic Resource Plan will:
(i) Describe the methodology
and results for identifying protection or development of wetlands and other Waters
of This State considering, at least, the characterization results from (3)(a)(F)
of this section and anticipated development needs for the coverage area. Protection
and development identifications may be further refined at the Plan sponsor’s
discretion and with input from the Technical Advisory Committee created pursuant
to this section.
(ii) Include text and maps
illustrating designation results and the rationale for each protection and development
identification.
(iii) Identify buffers as
necessary to maintain, protect or restore the functions and values of waters of
this State around identified protection areas, and describe proposed uses to be
allowed in the buffer areas.
(iv) Include demonstration
that practicable, less damaging alternatives, including alternative locations for
development, are not available for any waters of this State that are proposed for
a development identification.
(v) Include a description
of proposed best management practices that will ensure that the adverse effects
to waters of this State, where not avoidable, will be minimized.
(vi) Include description
of proposed allowed, conditional and disallowed uses for protection and development
identification categories.
(H) Compensatory Mitigation
Plan. The Advance Aquatic Resource Plan will describe how anticipated future adverse
impacts to Waters of this State within the coverage area will be mitigated. This
portion of the Plan may be conceptual in nature or it may have sufficient detail
so that it satisfies all of the requirements that are specified in OAR 141-085 for
compensatory mitigation plans. The level of mitigation planning will be determined
at the discretion of the Advance Aquatic Resource Plan sponsor and with input from
the Department considering the goals, purpose and need for the Advance Aquatic Resource
Plan and the desired outcome(s) sought from the Department. The compensatory mitigation
plan must, at a minimum, address the principal objectives for compensatory mitigation
specified in OAR 141-085-0680(2).
(I) Public Involvement Plan.
The Advance Aquatic Resource Plan will describe a plan for engagement with affected
local, state and federal government agencies, affected tribal governments and the
public through the planning process.
(J) Other Advance Aquatic
Resource Plan Elements. Other elements may include, but are not limited to: cultural
resources evaluations, storm water management planning as may be required for future
Clean Water Act Section 401 water quality certifications, biological assessments
for Endangered Species Act compliance, and environmental contamination assessments.
(b) Department Approval Prior
to Initiating Planning Work. A person intending to develop an Advance Aquatic Resource
Plan shall consult with the Department before initiating the planning work. The
purpose of this consultation is to ensure that an Advance Aquatic Resource Plan
is the appropriate planning tool; that the scope and scale of the Plan is commensurate
with the goals, purpose, need and desired outcomes; and that sufficient Department
resources are available. The Department may, in its discretion, decline to participate
in developing an Advance Aquatic Resource Plan for any reason, including for example,
that the Department determines that there are not adequate staff resources available
or that an Advance Aquatic Resource Plan is not a suitable tool for the identified
need. The decision to participate or decline to participate will be made in writing
by the Department within 30 days of receiving a written request. The Department’s
decision whether to participate is a final order in other than a contested case
and may be appealed as provided in ORS Chapter 183. An Advance Aquatic Resource
Plan will only proceed with an affirmative statement of Department participation.
(c) Technical Advisory Committee
Participation. The Advance Aquatic Resource Plan sponsor will establish and convene
an advisory body to provide input on Advance Aquatic Resource Plan content and development.
At a minimum, advisory committee membership will include (to the extent these agencies
desire involvement or unless otherwise approved by the Department): Department of
State Lands, Department of Fish and Wildlife, Department of Environmental Quality,
Department of Land Conservation and Development, US Army Corps of Engineers, National
Marine Fisheries Service, US Fish and Wildlife Service. Membership may additionally
include, but is not limited to: land owners or their representative(s) within the
Advance Aquatic Resource Plan coverage area; applicable local government staff;
local watershed council(s) representative; business representatives, conservationist
or environmental interests, affected tribal governments, and elected officials.
Other membership will be at the discretion of the Advance Aquatic Resource Plan
sponsor.
(4) Approval Process for
Advance Aquatic Resource Plans.
(a) Submittal Requirements.
A completed Advance Aquatic Resource Plan will be submitted to the Department in
the form, manner and number prescribed by the Department. Submittals will be processed
as a request for a proposed order of the director.
(b) Completeness and Technical
Sufficiency Review.
(A) The Department will conduct
a review to determine if all required Advance Aquatic Resource Plan elements are
complete and technically sufficient to prepare a draft order of the director.
(B) If the Department determines
that the Advance Aquatic Resource Plan is incomplete or technically insufficient,
the Department will notify the Advance Aquatic Resource Plan sponsor in writing
including identification of issues and provide opportunity for re-submittal. This
determination does not preclude further agency consideration of the subject matter.
(c) Draft Order
(A) In developing the Draft
Order, the Department will evaluate the information contained in the Advance Aquatic
Resource Plan and conduct any investigation that the Department considers appropriate.
(B) In developing the Draft
Order, the Department will consult with affected local, state and federal agencies
and affected tribal governments to assess any potential effects of the Advance Aquatic
Resource Plan on those entities’ programs, policies or requirements.
(C) If the Advance Aquatic
Resource Plan is complete and technically sufficient, the Department will prepare
a draft order including at least the following elements:
(i) Findings of compliance
or noncompliance with the determinations described in (4)(e)(B) of this section.
(ii) A summary of the Advance
Aquatic Resource Plan coverage area and activity types addressed by the Plan.
(iii) A description of other
eligibility criteria or standards for projects involving removal or fill activity
to be included in the Advance Aquatic Resource Plan.
(iv) Jurisdictional determinations
of presence or absence of waters of this State or approval of boundaries of waters
of this State, depending on level of identification conducted pursuant to (3)(a)(E)
of this section. All remaining requirements to obtain wetland delineations for future
removal-fill applications will be defined.
(v) A description of standards
by which future applications for removal-fill authorizations will be processed including
the requirements for when an application will be determined complete, and whether
the Department will shorten its processing timelines. At the Department’s
discretion, application completeness requirements may be reduced to the extent such
information is already provided in the Advance Aquatic Resource Plan. The information
included in future removal-fill application must be sufficient to allow the Department
consider the factors listed in ORS 196.825(3), to consider any other factors identified
by the Department, and to make the determinations that are listed in ORS 196.825(1).
At the Department’s discretion, applications for future removal-fill authorization
may be processed on a shorter timeline than otherwise established by OAR 141-085
except that public review requirements pursuant to OAR 141-085 will always apply.
(vi) Any general conditions
that are identified in the Advance Aquatic Resource Plan for activities addressed
by the Plan.
(vii) A description of the
annual reporting requirements, amendment process, and 5-year renewal process for
the approved Advance Aquatic Resource Plan.
(viii) Grounds and mechanisms
for suspension or revocation of the order.
(ix) Any other conditions
of, or limitations to, the order that the Department determines are appropriate.
(d) The draft order shall
be released for a 30-day public comment period prior to finalization. The form and
manner of public noticing shall be determined by the Department. After completion
of the public comment period, the Sponsor shall be provided the opportunity to respond
to public comments received. The Department may release an amended draft order for
a second 30-day public comment period if the Department determines that significant
changes to the draft order warrant a second comment period.
(e) Final Order. A final
order will approve, approve with conditions, or deny the Advance Aquatic Resource
Plan.
(A) If denied, the director
shall identify the reasons for denial and provide an opportunity to amend and resubmit
the Advance Aquatic Resource Plan. This determination does not preclude further
agency consideration of the subject matter
(B) The director will only
issue an order approving an Advance Aquatic Resource Plan where the director determines
that:
(i) The Advance Aquatic Resource
Plan is consistent with the protection, conservation and best use of the water resources
of this state as specified in ORS 196.600 to 196.905;
(ii) The Advance Aquatic
Resource Plan would not unreasonably interfere with the paramount policy of this
state to preserve the use of its waters for navigation, fishing, and public recreation;
(iii) A public need is fulfilled
by approval of the Advance Aquatic Resource Plan; and
(iv) Implementation of the
Advance Aquatic Resource Plan not inconsistent with governing jurisdiction(s) Comprehensive
Plan(s) and local land use regulations and ordinances.
(f) Appealing the Decision.
A final order of the director approving, approving with conditions, or denying an
Advance Aquatic Resource Plan may be appealed as described in OAR 141-085-0575 for
permit decisions. All final orders will include a notice of the right to a contested
case hearing.
(5) Administration of Approved
Advance Aquatic Resource Plans.
(a) Annual Reports. The Advance
Aquatic Resource Plan sponsor shall prepare an annual report summarizing use of
the Advance Aquatic Resource Plan for the previous year, its effectiveness in meeting
the established goals and purpose, and any known, substantive changes in conditions
within the coverage area that could materially affect ongoing implementation or
cause unintended adverse effects to waters of this State. Other annual report content
requirements may be defined in the final order. The first annual report is due one
year from the date that the Department issued the final order. Each subsequent report
will be due the same date each year thereafter that the final order approving the
Advance Aquatic Resource Plan remains in effect.
(b) Amendment Process. The
Department or plan sponsor may initiate an Advance Aquatic Resource Plan or final
order amendment upon a finding that the current Advance Aquatic Resource Plan or
final order is not substantially achieving the goals, purpose or need; or substantive
changes in conditions within the coverage area are materially affecting ongoing
Advance Aquatic Resource Plan implementation or causing unintended adverse effects
to waters of this State. The requirements and mechanism for Advance Aquatic Resource
Plan or final order amendment will be defined in the final order. At the Department’s
discretion, draft amended Advance Aquatic Resource Plans and draft amended orders
may be circulated for Technical Advisory Committee review and public comment.
(c) 5-Year Review and Renewal.
(A) Each final order is effective
for five years from the date of issuance. The final order may be renewed up to four
times, for a total term of 20 years. Upon written notice from the plan sponsor that
renewal of the Advance Aquatic Resource Plan is desired, the Department will review
each approved Advance Aquatic Resource Plan and final order. The plan sponsor shall
submit the request, if any, at least six months prior to the expiration of the final
order. After such review the director may request new or updated information and
act to modify, reissue or revoke the final order approving the Advance Aquatic Resource
Plan. In making this decision, the Department will consider whether:
(i) There have been substantive
changes in circumstances or conditions that would affect the waters of this State
to a greater extent than originally anticipated or would otherwise adversely affect
the compliance of the Advance Aquatic Resource Plan with the determinations made
pursuant to (4)(d)(B) of this section;
(ii) There have been changes
in applicable laws, administrative rules or regulations that require the Advance
Aquatic Resource Plan or final order to be re-evaluated;
(iii) The Advance Aquatic
Resource Plan and final order, as implemented, over the preceding five years is
substantially meeting the goals, purpose and need as established in the Advance
Aquatic Resource Plan and final order.
(B) The Department may initiate
Advance Aquatic Resource Plan or final order review at any time outside of the five-year
cycle if it determines that there have been changes in circumstances or conditions
that must be considered in advance of the five-year cycle.
(d) Suspension, Revocation.
At any time, and upon a finding by the director that the Advance Aquatic Resource
Plan or final order is not being implemented in good faith or implementation of
the Advance Aquatic Resource Plan or final order is otherwise allowing or facilitating
significant, unanticipated adverse effects to waters of this State, the director
may either suspend the final order and provide opportunity to correct, or revoke
the final order without opportunity to correct. Each final order will state whether
it may be suspended or revoked without a right to an appeal. If a right to appeal
a suspension or revocation is allowed, it shall be as provided in OAR 141-085-0575
for permit decisions.
(e) Cancellation. Upon written
request by the Advance Aquatic Resource Plan sponsor and for any reason, the Department
will act to cancel the final order.
Stat. Auth.: ORS 196.825800 - 196.990
& 196.600 - 196.692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 3-2014, f. 8-14-14,
cert. ef. 9-1-14
Permit Violations,
Complaints And Unauthorized Activities
141-085-0770
Complaints
and Investigations
(1) Violations.
A violation is:
(a) Removal-fill
without a valid authorization;
(b) Non-compliance
with any condition of an authorization;
(c) Obtaining
an authorization or reporting on conditions of an authorization by misrepresentation
or by failure to fully disclose known material facts;
(d) Failing
to comply with any term of an enforcement agreement or order;
(e) Failing
to comply with the requirements of the Removal-Fill Law or these rules; or
(f) Non-compliance
with any condition of an approved wetlands conservation plan.
(2) Reporting
Suspected Violations; Complaints. Alleged or suspected violations may be reported
as complaints to the Department in person, by e-mail, facsimile, telephone or in
writing. When reports of alleged or suspected violations are submitted to the Department
in confidence, as expressly requested by the complainant, and the information is
not otherwise required by law to be submitted, the Department may keep the name
of the person making the report confidential if the criteria set forth in ORS 192.501
or 192.502 are met.
Stat. Auth.: ORS
196.825 & 196.600 - 196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0775
Enforcement
Actions and Procedures; Appeals
(1) Enforcement Powers. The Department
is authorized to take or recommend such civil, criminal or administrative actions
as are necessary to enforce the Removal-Fill Law and these rules.
(2) Administrative Remedies.
The Department may take appropriate action to remedy violations or alleged violations
or to enforce these rules, a permit or authorization, or a final order or agreement.
(a) Appropriate enforcement
action depends upon the nature of the violation and may include, but is not limited
to, requiring the violator to:
(A) Comply with conditions
of a permit, authorization or order;
(B) Remove an unpermitted
fill;
(C) Restore the site of an
unpermitted removal;
(D) Pay a civil penalty;
(E) Provide compensatory
mitigation for unauthorized impacts or mitigation shortfalls. At the discretion
of the Department and in accordance with these rules, mitigation may include payment
in-lieu of mitigation, purchase of mitigation bank credits or purchase of in-lieu
fee credits; and
(F) Forfeit their right to
apply for new removal-fill permits or authorizations (debarment).
(b) The following administrative
remedies may be used to implement appropriate enforcement actions:
(A) Cease and desist orders
may be issued to prevent damage. The Department may issue an order requiring any
person to cease and desist from any project if the Department determines that such
violation or threatened violation presents an imminent and substantial risk of injury,
loss or damage to water resources.
(i) A cease and desist order
may be entered without prior notice or hearing and will be served upon the person
by personal service or by registered or certified mail.
(ii) A cease and desist order
will state that a hearing will be held on the order if a written request for hearing
is filed by the person subject to the order within 10 calendar days after receipt
of the order.
(iii) If a person subject
to a cease and desist order files a timely request for a hearing, the Department
will hold a contested case hearing before the Office of Administrative Hearings
pursuant to the applicable provisions of ORS 183.310 through 183.550.
(iv) Cease and desist orders
will not be stayed during the pendency of a hearing conducted under this section.
(v) Neither the Department
nor any duly authorized representative of the Department will be liable for any
damages a person may sustain as a result of a cease and desist order issued under
this section.
(B) Consent agreements and
consent orders are cooperative in nature and are used when an agreement can be reached
to resolve the violation. In signing a consent agreement, the violator waives his
or her right to appeal;
(C) Restoration orders may
be issued when a cooperative agreement is not reached to resolve the violation.
Restoration orders are appealable;
(D) Revocation or suspension
of an authorization, as per OAR 141-085-0780
(E) Consent agreements, consent
orders and restoration orders may include a civil penalty and corrective action
necessary to resolve the violation; and
(F) Notice of violations
may be issued to establish that a violation has occurred. Notice of violations are
appealable.
(3) Notice and Due Process.
The Department will give notice of any proposed restoration order relating to a
violation by personal service or by mailing the notice by registered or certified
mail to the person or public body affected. Any proposed restoration order will
include a notice of violation and will describe the nature and extent of the violation.
(4) Request for Hearing.
If a person subject to a restoration order under this section files a timely request
for hearing, the Department will hold a contested case hearing before the Office
of Administrative Hearings according to the applicable provisions of ORS 183.310
through 183.550. If the person fails to request a hearing, a final order will be
issued upon a prima facie case made on the record of the agency.
(5) Restoration Orders Must
Be Appealed Within 20 Calendar Days. Any person aggrieved by a proposed restoration
order may request a hearing within 20 calendar days of the date of personal service
or mailing of the notice.
(6) Written Requests for
Hearings. Any written request for a hearing concerning a cease and desist or proposed
restoration order shall admit or deny all factual matters stated in the proposed
restoration order and shall state any and all claims or defenses regarding the alleged
violation. Any factual matters not denied shall be presumed admitted, and failure
to raise a claim or defense shall be presumed to be a waiver of such claim or defense.
Evidence shall not be taken at the hearing on any issue not raised in the written
request for hearing.
(7) Civil Remedies. Any violation
of ORS 196.600 to 196.990 or of any rule or final order of the Department under
196.600 to 196.990 may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon; and in any such proceedings the Department may seek
and the court may award a sum of money sufficient to compensate the public for any
destruction or infringement of any public right of navigation, fishery or recreation
resulting from such violation. Civil remedies sought under this section may also
include property liens. Proceedings thus brought by the Department will set forth,
if applicable, the dates of notice and hearing and the specific rule or order of
the Department, together with the facts of noncompliance, the facts giving rise
to the public nuisance, and a statement of the damages to any public right of navigation,
fishery or recreation, if any, resulting from such violation.
Stat. Auth.: ORS 196.825 & 196.600
- 196.692
Stats. Implemented: ORS 196.600
- 196.692 & 196.800 - 196.990
Hist.: DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12,
cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef. 9-1-14
141-085-0780
Revoking
or Suspending an Authorization; Allowing Corrective Action
(1) Revocation or
Suspension if Out of Compliance. The Department may revoke or suspend an authorization
if an alleged violator is not in compliance with any conditions of an authorization,
or if the applicant failed to provide complete and accurate information in the permit
application.
(2) Suspension
for Delinquency of Payment. Any authorization shall be suspended during any period
of delinquency of payment of the renewal fee and will be treated as though no authorization
had been issued.
(3) Procedures
to Revoke or Suspend Authorization. The Department may initiate the following proceedings
to revoke an authorization:
(a) The Department
will issue a Notice of Intent to Revoke or Suspend to the alleged violator stating
the intent to revoke or suspend the authorization; and
(b) The Notice
will include the following information:
(A) A statement
of the alleged violator's right to a contested case hearing within 20 calendar days
of receiving the notice;
(B) A statement
of the authority and jurisdiction under which the contested case hearing is to be
held;
(C) Citations
for the relevant sections of law and rule;
(D) A short
and plain statement of the matters asserted or charged as constituting the violation(s);
and
(E) A statement
of any action that is necessary by the alleged violator to correct or offset the
effects of the violation including, but not limited to, removal of filled material
or replacement of removed material.
(c) Any action
specified in the notice will include a reasonable time period in which to complete
the corrective action.
(A) If the
alleged violator completes such action within the specified time period, the revocation
or suspension procedure will be terminated; and
(B) If the
authorization holder fails to request a contested case hearing, the Department may
issue a final order revoking or suspending the authorization after presenting a
prima facie case demonstrating that a violation has occurred.
(4) Revocation
or Suspension of Multi-Year Authorizations. If a person fails to comply with reporting
requirements or any other condition of a multi-year authorization the Department
may revoke the multi-year status and require annual renewal, suspend the permit
pending correction, or take any other enforcement action available to the Department.
(5) Appeals
Procedures. Procedures for requesting an appeal on a revocation or suspension are
as set forth in OAR 141-085-0775(4) and (6).
Stat. Auth.: ORS
196.825 & 196.600 - 196.692

Stats. Implemented:
ORS 196.600 - 196.692, 196.795 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12
141-085-0785
Civil Penalties; Appeals
(1) Civil Penalties
May Be Assessed. In addition to any other remedy allowed by law or these rules,
the Department may assess a civil penalty for any violation of the Removal-Fill
Law, these rules, an authorization or an order issued pursuant to OAR 141-085.
(2) Each
Day is a Separate Offense. Each day a violation continues constitutes a separate
offense for which the Department may assess a separate penalty.
(3) Multiple
Penalties May Be Assessed. A civil penalty assessed on an initial violation may
be followed by one or more separate civil penalties for failure to comply with a
restoration order issued on the same violation.
(4) Required
Notice; Right to Appeal Within 20 Calendar Days. The Department will give written
notice of intent to assess a civil penalty by personal service or by registered
or certified mail to the permit holder or person (hereinafter referred to as “party”)
incurring the civil penalty. The notice will include the following:
(a) The particular
section of the statute, rule, order or authorization involved;
(b) A short
and plain statement of the matter asserted or charged;
(c) A statement
of the party's right to request a hearing within 20 calendar days of receiving the
notice;
(d) A statement
of the amount of civil penalty assessed and terms and conditions of payment; and
(e) Notification
that the party may request a contested case hearing.
(5) Appeals
Procedures. Procedures for requesting an appeal on a civil penalty are as set forth
in OAR 141-085-0775(4) and (6).
(6) Calculating
the Civil Penalty. The amount of civil penalty (F), as expressed in U.S. currency
dollars, will be determined by the Department using the following formula: F = BPCI:
(a) B is
the base fine factor of $1,000;
(b) "P" is
the prior knowledge factor to be determined as follows:
(A) A value
of 1 will be applied if the alleged violator was unaware of the Removal-Fill Law
at the time of the alleged violation;
(B) A value
of 2 will be applied if the alleged violator was aware of the Removal-Fill Law at
the time of the alleged violation and in cases of permit non-compliance; or
(C) A value
of 5 will be applied if the alleged violator had a previous violation. A previous
violation exists, if there was an adjudication (either in court or administrative
hearing), or the violator failed to appeal an enforcement order (and a final order
was issued), or the violator signed a consent agreement. This value will not be
imposed if the previous violation occurred more than five years prior to the current
incident.
(c) The cooperation
value (C) will be determined by the Department after reviewing the past history
of the person in taking all feasible steps or procedures necessary or appropriate
to correct the violation for which the penalty is being assessed. The value will
be assessed as follows:
(A) A value
of 1 will be applied when the person responds to communications from the Department,
supplies information requested by the Department, permits access to the site to
conduct site investigations and/or complies with restoration as requested by the
Department; or
(B) A value
of 3 will be applied when the person:
(i) Has ceased
to be responsive to communications from the Department;
(ii) Has
ceased to be cooperative in providing information as requested by the Department;
or
(iii) Does
not cease the activity alleged to constitute a violation or threatened violation
after receiving verbal or written notification from the Department.
(d) "I" is
the water resource adverse effect factor to be determined as follows:
(A) A value
of 1 will be applied if the damage to the resource is minimal and/or the resource
is expected to naturally self-restore within one year; or
(B) A value
of 3 will be applied if the adverse impacts are significant and/or not expected
to naturally self-restore within one year. In the case of permit non-compliance,
a value of 3 will be applied if failure to correct the deficiency could result in
reasonably expected adverse impacts to waters of this state or a deficiency in the
obligation to provide mitigation.
(e) In cases
where the prior knowledge (P) factor is greater than one (1) and the cooperation
(C) factor is greater than one (1), the total amount of the civil penalty (F), in
dollars U.S. currency, will be doubled, not to exceed $10,000 per day.
(f) In determining
whether to assess a separate penalty for each day a violation continues, the Department
may consider the number of days during which the activity alleged to constitute
a violation occurred, as well as the number of days the adverse effect of this activity
continues unabated.
(7) Failure
to Pay Civil Penalty. Once the final adjudication of any civil penalty has been
calculated and noticed, the amount of the civil penalty will increase by the amount
of the original civil penalty for every 20 calendar days that pass without the alleged
violator remitting payment to the Department for the full amount of the civil penalty
and the Department taking receipt of the payment. In no case will the amount of
the civil penalty be increased by more than ten times the original civil penalty
amount. If a civil penalty or any portion of the civil penalty is not paid, interest
will accrue at the rate of nine percent per annum on the unpaid balance (pursuant
to ORS 82.010).
(8) Civil
Penalty Relief. The alleged violator may request from the Department a reduction
or waiver of the civil penalty by showing evidence of financial hardship. The request
must be received within 20 calendar days from the date of personal service or mailing
of the notice of civil penalty. Evidence provided as to the alleged violator's economic
and financial condition may be presented without prejudice to any claim by the person
that no violation has occurred or that the person is not responsible for the violation.
The Department will reduce or waive a civil penalty upon request if the Department
determines that the imposition of the full civil penalty would result in extreme
financial hardship for the violator, and that the public interest in avoiding extreme
financial hardship outweighs the public interest in deterring future violations.
(9) Settlement.
The Department may settle violations and penalties in the exercise of its discretion
taking into account the cooperation of the violator in addressing the violation.
Stat. Auth.: ORS
196.825 & 196.600 - 196. 692

Stats. Implemented:
ORS 196.600 - 196.692, 196.800 - 196.990

Hist.: DSL
1-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL
3-2012, f. 9-28-12, cert. ef. 9-29-12

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