Administrative Rules For Wetland Delineation Report Requirements And For Jurisdictional Determinations For The Purpose Of Regulating Fill And Removal Within Waters Of The State


Published: 2015

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The Oregon Administrative Rules contain OARs filed through November 15, 2015

 
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DEPARTMENT OF STATE LANDS




 







DIVISION 90
ADMINISTRATIVE RULES FOR WETLAND DELINEATION REPORT

REQUIREMENTS AND FOR JURISDICTIONAL DETERMINATIONS FOR THE PURPOSE

OF REGULATING FILL AND REMOVAL WITHIN WATERS OF THE STATE

141-090-0005
Purpose
The purpose of these
rules is to establish standards and procedures by which the Department of State
Lands makes jurisdictional determinations of wetlands and other waters of this state.
These rules also establish minimum standards for wetland delineation reports submitted
to the Department for review and the procedures for Department review and approval.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0010
Applicability
(1) These rules
establish the standards and procedures used by the Department of State Lands to
identify waters of this state that are subject to regulation and authorization requirements
of the Removal-Fill Law (ORS 196.800 to 196.990).
(2) These
rules are supplemental to administrative rules for issuance and enforcement of removal
and fill authorizations (OAR 141-085; OAR 141-0102); rules pertaining to wetland
conservation plans and local wetlands inventories (OAR 141-086; OAR 141-120); rules
pertaining to the identification of significant wetlands (OAR 141-086); rules pertaining
to General Authorizations (OAR 141-089); rules pertaining to General Permits (OAR
141-093) and rules pertaining to Oregon Scenic Waterways (OAR 141-100).
(3) Agencies
such as the U.S. Army Corps of Engineers (Corps of Engineers) and the Natural Resources
Conservation Service (NRCS) have separate regulatory authority over waters of the
United States and separate jurisdictional determination procedures.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0015
Policy
(1) It is the policy
of the State of Oregon that the protection, conservation and best use of the water
resources of this state are matters of the utmost public concern (ORS 196.805) and
that the state use a single definition of wetlands and a single, uniform methodology
of delineating wetland boundaries (ORS 196.672).
(2) In accord
with these policies the Department shall, to the greatest extent possible:
(a) Provide
a clear process for making, modifying or reissuing jurisdictional determinations,
including wetland boundary delineations;
(b) Make
jurisdictional determinations using the best available science, technical guidance
and documents;
(c) Use sound
professional judgment in interpreting maps, aerial photographs, environmental data
and other relevant documents;
(d) Provide
jurisdictional determinations that improve the level of regulatory certainty for
landowners and developers and that help ensure that fill or removal of material
in waters of this state does not occur without a required removal or fill permit;
and
(e) Encourage
landowners and developers to utilize wetland delineation reports at the earliest
stage of site development planning in order to incorporate measures to avoid and
minimize impacts to wetlands and other waters and thus prevent unnecessary regulatory
delays.
(3) Because
wetlands and other waters of this state can be affected over time by both natural
changes and human activities, jurisdictional determinations are not valid for an
indefinite period of time.
(4) The Director
of the Department of State Lands shall designate employees responsible for making
jurisdictional determinations as described in these rules.
(5) Final
authority for determining the adequacy of the procedures, methods, application of
technical documents, interpretation and analysis of maps and data, and conclusions
regarding the identification of waters of this state and jurisdictional determinations
rests with the Department except as described in Oregon Laws 2012, c. 108, §
2, and except when the Department’s determination is reviewed by a court of
competent jurisdiction.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
196.800 – 196.990, 196.600 – 196.665, 196.668 – 96.692 & 197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0020
Definitions
For the purpose
of these rules:
(1) "Agent"
means a business partner, attorney or any individual who is legally authorized to
represent the landowner's interests.
(2) "Applicant"
means a person who has applied to the Department for a wetland delineation report
approval, a jurisdictional determination and a removal or fill authorization.
(3) "Authorization
Application" means the written application for an authorization to place fill in
or remove material from waters of this state as required by OAR 141-085, 141-089,
141-0100 and 141-0102.
(4) "Basis
of Jurisdictional Determination" means a summary statement of the criteria and indicators
that support the Department 's jurisdictional determination.
(5) "Change
in Circumstances" means a change in site conditions that fundamentally alters the
hydrology or substrate to the extent that the "normal circumstances" of waters of
this state are changed. The change in circumstances may be due to alterations on
a site or alterations offsite that affect the site sufficiently to enlarge, reduce,
or change the status or geographic extent of a jurisdictional water. A change in
circumstances includes, but is not limited to, a dike breach or drainage system
failure that restores former hydrologic conditions to a site, placement of fill
material, or a water source diversion.
(6) "Consultant"
means a private individual or firm whose business is to provide professional services
to the public.
(7) "Delineation"
means a determination of wetland presence that includes marking the wetland boundaries
on the ground and on a detailed map prepared by professional land survey or similar
accurate methods.
(8) "Determination"
means a decision that a site may, does, is unlikely to, or does not contain waters
of this state, including wetlands. A determination does not include the precise
location or boundaries of any wetlands or waterways determined to be present.
(9) "Director"
means the Director of the Department of State Lands or his or her designate.
(10) "Department"
means the Oregon Department of State Lands, including the Director.
(11) "Final
Order" means a final agency action expressed in writing. "Final order" does not
include any tentative or preliminary agency statement, including a "preliminary
jurisdictional determination," and does not preclude further agency consideration
of the subject matter of the final order.
(12) "Global
Positioning System" (GPS) means a navigation system which consists of a network
of satellites and earth receiver stations which allows a person to determine, via
a receiver, their respective position in latitude, longitude, and altitude.
(13) "Indicator"
means soil characteristics, vegetation, hydrology evidence or other field data that
indicate, by their presence or absence, the existence of certain environmental conditions.
Indicators are used with other information, mapped or anecdotal, to determine the
state's jurisdiction over waters of this state.
(14) "Jurisdictional
Determination" (JD) means a written decision by the Department that waters of this
state subject to regulation and authorization requirements of OAR 141-085, 141-089,
141-0100 and 141-0102 are present or not present on a land parcel. The JD may include
a delineation of the geographic boundaries of the water area subject to state jurisdiction.
For example, a JD may include the location of a wetland boundary or the location
of the ordinary high water line of a waterway. A JD may, but does not necessarily,
include a determination that a particular activity in a water of this state is subject
to authorization requirements. The decision record includes the basis of the jurisdictional
determination and is a final order subject to reconsideration according to the provisions
in 141-090-0050.
(15) "Landowner"
means the legal owner of the parcel(s) for which a JD is requested or made.
(16) "Local
Wetlands Inventory" (LWI) means a wetland inventory map and supporting data that
is conducted according to the requirements in OAR 141-086 and has been approved
by the Department.
(17) "Manual"
means the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual including
the two regional supplements that cover Oregon: Arid West and Western Mountains,
Valleys, and Coast, and applicable guidance (see OAR 141-090-0030) all of which
is hereby incorporated by reference. The public may obtain a copy of the manual
from the Department’s website.
(18) "National
Wetlands Inventory" (NWI) means the wetlands inventory prepared by the U.S. Fish
and Wildlife Service.
(19) "New
Information" means data, reports, photographs, observations or similar information
that is provided to or obtained by the Department after the Department has issued
a jurisdictional determination or issued an authorization.
(20) "Non-wetland"
means an area that does not meet the wetland definition and criteria.
(21) "Normal
Circumstances" means the hydrology, soil and vegetative conditions that are naturally
present, regardless of whether or not the soil or hydrology has been recently altered
or the natural vegetation has been removed or altered. "Normal circumstances" includes
a consideration of the permanence of any change to the site; for example, if several
feet of fill material are placed on a wetland the new "normal circumstances" may
be non-wetland. In such a situation, the Department may determine if the placement
of fill material required a fill permit.
(22) "Offsite
Determination" means a determination by the Department or any other person that
is conducted without a site visit using maps, aerial photographs, observations from
adjacent areas, or interviews with persons familiar with the site. An offsite determination
is considered to be a Preliminary Jurisdictional Determination (PJD) unless otherwise
stated in writing by the Department.
(23) "Onsite
Determination" means a determination by the Department or any other person that
includes a site visit to collect relevant data. An onsite determination may be either
a PJD or a JD.
(24) "Other
Waters" means waters of this state other than wetlands.
(25) "Person"
means an individual, corporation, firm, partnership, estate, association, body of
government or other legal entity.
(26) "Preliminary
Jurisdictional Determination" (PJD) means an advisory determination issued orally
or in writing stating that wetlands or other waters of this state are present or
not present on a parcel of land. Because a PJD is advisory in nature it has no specified
duration or expiration and is not subject to appeal. PJDs include all wetland determinations
by any person other than the Department, and also include wetlands mapped on the
NWI or on an LWI.
(27) "Primary
Contact" means the person or firm designated by the landowner, agent or applicant
to serve as the Department's contact for the purpose of the review and approval
of a wetland delineation report.
(28) "Removal-Fill
Law" means ORS 196.800 through 196.990 and rules adopted thereunder relating to
the filling and/or the removal of material in waters of this state.
(29) "Report"
means a wetland delineation report.
(30) "Sample
Plot" means an area on a parcel of land within which environmental data (e.g., soils,
hydrology and vegetation) are collected that is representative of that area and
documented on a wetland determination data form.
(31) “Site-specific
methods” means what the field investigator actually did in order to conduct
the wetland determination or delineation and prepare the wetland delineation report;
for example, the offsite resources actually consulted, why certain portions of a
study area were or were not selected for field sampling, actual plot sizes for vegetation
sampling, and explanation of best professional judgment relied upon. A generic
description of methods the field investigator generally employs is not site-specific.
(32) “Study
Area” means the area that was investigated for the presence of waters of this
state (e.g., usually a portion of a tax lot(s), parcel or other legally defined
geographic area).
(33) "Waters
of this state" means all natural waterways, all tidal and nontidal 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 nonnavigable
bodies of water in this state and those portions of the ocean shore, as defined
in ORS 390.605. (ORS 196.800(14) and OAR 141-085-0010 and 141-085-0015).
(34) "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 (ORS 196.800(16) and OAR 141-085-0010).
(35) "Wetland
Boundary" means a line marked on the ground and on a map that identifies the boundary
line between wetlands and non-wetlands.
(36) "Wetland
Delineation Report" means a written document that contains the methods, data, conclusions
and maps used to determine if wetlands and other waters of this state are present
on a land parcel and, if so, describes and maps their location and geographic extent.
A wetland determination report documenting wetland presence or absence is included
within this definition.
(37) "Wetland
Map" means a map included in a Wetland Delineation Report or provided with a JD
by the Department that shows the parcel(s) and/or study area(s) investigated and
the location, size and boundaries of any wetlands and other waters.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 2-2003(Temp) f. & cert. ef. 11-26-03
thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert.
ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0025
Procedures for Determinations Conducted Entirely by the Department
(1) The Department
shall make a determination (PJD or JD) according to the procedures in this section.
(2) The Department
may make a determination for a number of reasons, including but not limited to:
(a) A written
request from any person (e.g., a landowner or their agent) requesting a determination
for a particular parcel or parcels;
(b) A Wetland
Land Use Notice from a local government as required by ORS 196.676;
(c) A site
development notice from a local government;
(d) A request
from a local government or other government entity acting in its capacity to conduct
site assessments for project or planning purposes;
(e) A removal-fill
authorization application, request for a pre-application meeting or a compliance
investigation;
(f) A request
to review and approve a wetland delineation report (see additional requirements
and procedures in OAR 141-090-0030, 141-090-0032 and 141-090-0035); or
(g) In conjunction
with its authority and responsibilities under ORS 196.600 to 196.962, 196.800 to
196.990 and any applicable rules of the Department.
(3) The Department
may prioritize the completion of determinations based upon the availability of staff
and budget resources.
(4) A request
to the Department to provide a wetland determination apart from an authorization
application, wetland delineation report submittal or local government notice shall
include:
(a) A written
request on a form provided by the Department;
(b) Landowner/agent
permission to conduct a site visit if an onsite determination is desired;
(c) Landowner
or agent name, company or agency, mailing address and phone number;
(d) A location
map such as a city map showing the precise parcel location with respect to nearest
streets and parcel address, if any;
(e) A detailed
site map such as a tax map or hand drawn parcel map showing, as appropriate, such
features as the location of streets, roads, buildings, streams, and area of any
planned development or fill or excavation, if known; and
(f) The legal
location from the tax map (Township, Range, Section, Quarter Quarter Section and
Tax Lot numbers).
(5) A request
for a determination may include additional helpful information, such as:
(a) A large
scale topographic map of the site (e.g., 1 inch = 50 feet);
(b) A large
scale aerial photograph of the site; or
(c) Photographs
of the site.
(6) A wetland
determination request as described in section (4) and (5) of this rule may not be
used to obtain agency review and approval of a wetland delineation report (see OAR
141-090-0032 and 141-090-0040).
(7) The Department
will review the information provided with the request along with other available
maps and information and provide a PJD or a JD.
(8) The Department
may request additional information and may conduct a site visit to ensure an accurate
determination. The Department shall contact the applicant or primary contact prior
to conducting a site visit.
(9) An onsite
determination conducted by the Department to make a JD or PJD shall include at a
minimum:
(a) A location
map showing the location of the parcel(s) with respect to major roads;
(b) A parcel
map showing property boundaries;
(c) The legal
location from the tax map (Township, Range, Section, Quarter Quarter Section and
Tax Lot numbers);
(d) The NWI
map or, if available, the LWI map with the site located;
(e) The county
soil survey map with site located and soil type(s) mapped on the site identified;
(f) A sketch
map showing the approximate location of any waters of this state on the parcel(s);
(g) At least
one data form (or equivalent notes) documenting any wetlands identified or possible
wetlands determined not to meet wetland criteria; and
(h) Conclusions
and recommendations regarding additional requirements (e.g., the need for a delineation
or permit), as appropriate to the determination request and the situation.
(10) After
review of the information and the site visit, if conducted, the Department may:
(a) Provide
a written PJD or JD in accordance with section (11) of this rule; or
(b) Provide
a written PJD and recommend that the landowner, agent or applicant obtain a wetland
determination and delineation that meets the requirements in OAR 141-090-0030 and
141-090-0035.
(11) A written
PJD or JD by the Department shall include at a minimum:
(a) A letter
or form addressed to the applicant, landowner or agent that includes the location
of the parcel(s) investigated, a file number for future reference, and the expiration
date of the JD, or a response on or attached to a wetland land use notice form or
other site development notice submitted by a local government;
(b) Comments
regarding the precision or use of the PJD or JD, as appropriate;
(c) Additional
requirements or recommendations, such as the need for a wetland delineation;
(d) A determination
of the requirements or exemptions in accordance with OAR 141-085, 141-089, 141-093,
141-0100 and 141-0102 that apply to any waters of this state identified on the parcel(s)
and/or the proposed activity, if the information provided to or obtained by the
Department is sufficient to make such determination; and
(e) A map
or reference to a map showing the parcel(s) investigated and the approximate location
of any waters of this state identified on the parcel(s), unless the information
provided to or obtained by the Department is not sufficient to make or refer to
such a map.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0030
Technical
Requirements
(1) Wetland determinations
and delineations shall be conducted in accordance with the 1987 U.S. Army Corps
of Engineers Wetlands Delineation Manual ("the manual"), including regional
supplements and applicable guidance, and any supporting technical or guidance documents
issued by the Department.
(2) The jurisdictional
limits of other waters (e.g., streams, estuaries) are described in OAR 141-085-0515.
(3) In addition
to the requirements in this section, wetland delineation reports submitted to the
Department for review and approval shall meet the standards and requirements in
OAR 141-090-0035.
[Publications: Publications
referenced are available from the agency.]
Stat. Auth.:
ORS 196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 2-2003(Temp) f. & cert. ef. 11-26-03
thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert.
ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0032
Fees for Wetland Delineation Report Review
(1) Any person submitting
a wetland delineation report to the Department for review and approval must pay
to the Department a nonrefundable fee in the amount as determined under ORS 196.818(4).
A request for reissuance of an expiring report is not subject to an additional fee.
(2) If the
person submitting a report withdraws the report from agency review after it has
been submitted and the fee paid, or if the Department withdraws the report according
to OAR 141-090-0040(3)(d), any resubmittal is subject to a new fee.
(3) If a
person wishes to change information in or expand the geographic area covered by
a report that is pending initial review by the Department, a revised report may
replace the previous report in its entirety, without incurring an additional fee.
This provision does not apply to changes requested by the Department.
(4) A report
that has been rejected by the Department per OAR 141-090-0040(3)(f) may be revised
and resubmitted along with an additional nonrefundable fee of $100.00.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist.: DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0035
Standards
and Requirements for Wetland Delineation Reports Submitted to the Department
(1) Report Submittal:
All wetland delineation reports ("reports") submitted to the Department for review,
approval and a JD shall meet the technical requirements in OAR 141-090-0030 as well
as the minimum standards and requirements in this rule. Reports must conform to
the report format provided by the Department.
(2) All wetlands
and other waters on the parcel or study area shall be included; the Department will
determine whether or not they are "waters of this state" subject to jurisdiction
under OAR 141-085, 141-089, 141-093, 141-100 and 141-102.
(3) All report
text, maps, aerial photographs, ground photographs, and data forms must be legible.
(4) Reports
must be submitted as:
(a) Paper
hard copies, reproduced in color as applicable, unbound and, with the exception
of photographs, must copy legibly on a black and white copier; or
(b) Digital
single PDF files with minimum resolution of 300 dpi and searchable text for the
text portion of the report.
(5) Submitting
Geographic Information System (GIS) data is optional but recommended for reports
covering large study areas and must conform to the GIS format provided by the Department.
(6) All submittals
must include a fully completed and signed “Wetland Delineation Report Cover
Form” (current form provided by the Department).
(7) Field
Methods: The field investigation methods and level of detail required for making
and documenting a PJD or JD and mapping wetlands and other waters of this state
will vary by site. At a minimum:
(a) The entire
parcel (tax lot) or study area must be investigated during a field investigation.
If only a portion of a parcel is investigated, the study area with respect to parcel
boundaries must be made clear in the report text and shown on the wetland maps.
(b) All waters
of this state in addition to wetlands must be identified, described, supported by
data as appropriate, and mapped.
(c) Sufficient
data and additional information shall be collected for any wetlands and other waters
of this state to enable the Department to make a JD and also to determine if removal-fill
permit requirements apply or if the feature identified may be specifically exempt
from permit requirements.
(d) The wetland
delineation must include sample plots that represent the characteristics of each
wetland present; represent each adjacent non-wetland(s); are paired and located
close enough to either side of the wetland boundary to accurately substantiate the
wetland boundary location and are sufficient to characterize long or irregular boundaries.
(e) Wetland
determination sample plot data must be provided for any portion of the study area
where there is significant deviation from wetlands mapped on the NWI or LWI unless
the deviation is due to development that is so significant that it precludes data
collection.
(f) At least
one sample plot must be placed in all mapped hydric soil units within the study
area.
(g) At least
one sample plot must be placed in the lowest topographic areas or other locations
most likely to contain wetlands.
(8) Study
area boundaries, wetland and other water boundaries, and sample plots shall be identified
on the ground. For actively managed sites, such as agricultural fields, golf courses,
or recreational fields, where it may be impractical to leave the boundary and plot
markers on the ground until the JD is issued, their precise location must be readily
relocated in the field by the applicant or consultant during a site visit by the
Department.
(9) Because
sites are highly variable and JD needs also vary, some situations may warrant deviation
from the Field Methods requirements outlined in OAR 141-090-0035(7), for example
large geographic areas, linear projects, mosaics, and difficult wetland sites.
In such situations, persons conducting wetland delineations are encouraged to consult
with the Department regarding appropriate methods.
(10) For
farmed sites, field work should be guided by multiple information sources including
at least three aerial photos from three different years (early growing season if
possible), a detailed topographic survey, and information about site management
activities such as subsurface drainage systems and plowing frequency and depth.
(a) Wetland
determination and delineation on farmed sites shall follow procedures outlined in
the Difficult Wetland Situations Chapter of the appropriate regional supplement.
(b) On sites
where the hydrology indicators may be missing or misleading due to natural or hydrologic
manipulation, hydrologic monitoring may be needed to verify the absence or presence
of wetland hydrology. When a hydrology monitoring method alternative to the manual
standard is being pursued, the proposed method shall be submitted to the Department
in writing for prior approval.
(11) Wetland
boundaries, samples plots, and study area boundaries must be mapped to the standards
described in subsection (a) and (b) of this section.
(a) Except
as provided in subsection (b) of this section, the map precision standard (precision
of transferring boundaries of features located on the ground to a map) for wetland
boundaries, data plots and study area boundaries is within one meter (3.28 feet);
(b) The minimum
delineation accuracy and map precision standard for voluntary wetland ecosystem
restoration projects (see OAR 141-089-0800) that do not include compensatory mitigation
activities or payment-in-lieu is 50 feet.
(c) Mapping
procedures may include professional land survey, GPS, measurements made from permanent
features identified on the map or on an aerial photo included with the report, or
approximated. For most intensive development activities, such as subdivision planning
or commercial development, a professional land survey may be necessary. The appropriate
map precision for removal-fill permitting is subject to the judgment of the Department.
(12) Report
Text: The report text must include:
(a) A detailed
description of the site, its landscape setting, and previous and current land uses;
(b) A description,
including the approximate year and extent, of any site alterations that likely affected
the presence, location or geographic boundaries of any wetlands or other waters
on the site (e.g., surface drainage ditches or fill material);
(c) Precipitation
for the day(s) of and 2 week period preceding the field investigation(s), observed
and percent of normal rainfall for the water year to date, and for the observed
rainfall compared to the NRCS WETS table 30% and 70% chance exceedance values for
each of the three months preceding the field investigation;
(d) The date(s)
of the field investigation and site-specific methods used to conduct the field investigation,
select sample plot locations, determine boundaries of wetlands and other waters,
interpolate boundaries between paired plots, and make PJDs;
(e) A description
of any wetlands and other waters, including whether or not they extend offsite,
and the characteristics of the wetland and other water boundaries on the site;
(f) Deviation
from NWI mapping, LWI mapping, or previous DSL-approved delineations, supported
by wetland determination data or explanation of development in area mapped previously
as wetland;
(g) An explanation
of how the location of the parcel boundaries, data plots, wetlands, and other features
depicted on the delineation map(s) were mapped. A statement of precision must
be included with each method used to generate the map.
(h) All preliminary
jurisdictional determinations shall be supported with information and rationale
sufficient to demonstrate jurisdiction based on OAR 141-085-0515 criteria. This
information can include, but is not limited to:
(A) Documentation
of fish presence or absence in a stream or ditch, using published maps or reports
or information from an authoritative source (e.g., Oregon Department of Fish and
Wildlife field staff);
(B) Information
sufficient to determine whether or not an identified water feature is artificially
created entirely from upland and the purpose for which it was created.
(C) Information
about the water feature’s wetland status, size, average water depth at ordinary
high water, topographic and geomorphological location, mapped soil series and hydric
status, and evidence of drainage (e.g., drain tiles or ditching).
(D) Hydrology
monitoring data;
(E) Historical
aerial photographs;
(F) Data
or other information on pre-disturbance conditions, such as excavation to an original
(formed insitu) soil surface or identification of a former stream course;
(G) A detailed
topographic survey;
(H) Data
collected at a certain time of year;
(I) Additional
plant species identification; or
(J) Documentation
from a Removal-fill permit including permit number.
(i) The results
and conclusions of the investigation;
(j) The following
disclaimer: "This report documents the investigation, best professional judgment
and conclusions of the investigator. It is correct and complete to the best of my
knowledge. It should be considered a Preliminary Jurisdictional Determination of
wetlands and other waters and used at your own risk unless it has been reviewed
and approved in writing by the Oregon Department of State Lands in accordance with
OAR 141-090-0005 through 141-090-0055." and
(k) Appendices,
as needed.
(13) Report
Figures and Maps: All reports shall include the figures and maps listed in (13)(a)
through (13)(g). All maps must include an outline of the study area boundary, a
north arrow, a scale bar, and legend of all map elements.
(a) A location
map, such as a city map,
(b) Assessors
tax lot map(s), which include the entire study area, downloaded as PDFs from the
Oregon Department of Revenue’s “ORMAP” website.
(c) The appropriate
LWI map(s) or if no LWI has been completed, the NWI map(s),
(d) The county
soil survey map including the map unit symbol, name, and hydric status for all soil
series mapped within the study area;
(e) At least
one recent aerial photograph, preferably taken early in the growing season that
includes the month and year of the photo (include at least three aerial photos from
three different years for farmed sites).
(f) One or
more wetland and other waters maps comprising the wetland and water determination
or delineation, as appropriate, that meets the requirements in sections (14) through
(16) of this rule.
(g) Ground
level color photographs of the site.
(14) The
wetland and other waters map(s) must include:
(a) The boundaries
of the entire parcel(s) subject to investigation; or
(b) The study
area boundary in relation to the parcel boundaries, if only a portion of the parcel(s)
was investigated. For large parcels with small study areas, a map in addition to
the wetland map may be required to show the relationship between the study area
and parcel boundaries.
(c) An index
map if a large project study area needs to be divided into more than one detail
map for clarity or map scale issues. The index map shall show the precise location
and extent of the areas shown on the detail maps in relationship to the larger study
area.
(d) Locations
of existing structures (unless visible on a current aerial photo included in the
report), such as culverts, bridges, tidegates, fencelines, powerlines, and roads,
where practicable.
(e) Locations
of fill, water diversions, or other major alterations;
(f) The boundaries
of all wetlands and other waters and where they extend offsite;
(g) Numbered
sample plots corresponding to data forms (see section (17) of this rule);
(h) Photograph
locations and direction of view.
(i) A statement
of the mapping method and estimated mapping precision for the study area boundary,
wetland and non-wetland water boundaries, and data plot points, for example the
GPS post-processing error estimate.
(15) The
wetlands and other waters identified must be accurately transferred to a linework
basemap, legible on a black-and-white photocopy. An aerial photo base layer may
be used but the image shall be lightened to maintain map legibility.
(16) The
wetland map(s) shall be at a scale suitable for the study area size and for legibility.
For most purposes, an appropriate map scale is 1 inch = 100 feet. For large study
areas, a scale of 1 inch = 250 feet may be sufficient. Minimum map scale for a JD
and for permitting purposes is subject to Department approval.
(17) Data
Form Requirements: All reports shall include a wetland determination data form for
each sample plot. The data form used must be that provided with the appropriate
regional supplement to the manual, or other form provided by the Department. All
wetland determination data forms must:
(a) Be fully
completed;
(b) Include
only data collected from a single sample plot on a single date (additional dates
of hydrology data may be reported in the comments section or provided in a table);
(c) Include
the full Latin botanical name of all plant species listed per the National Wetland
Plant List;
(d) Use standard
soils terminology and abbreviations as established by the U.S. Department of Agriculture,
Natural Resources Conservation Service; and
(e) Provide
remarks for each disturbed or problematic wetland parameter per procedures outlined
in the Difficult Wetland Situations Chapter of the appropriate regional supplement.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
196.800 – 196.990, 196.600 – 196.665, 196.668 – 96.692 & 197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0040
Procedures
for Review and Approval of a Wetland Delineation Report Submitted to the Department
for a Jurisdictional Determination
(1) When a wetland
delineation report is submitted to the Department for review, approval and a JD,
the Department shall review the report (according to its established priorities)
to ensure that:
(a) The work
meets the technical requirements in OAR 141-090-0030;
(b) The report
meets the standards and requirements in OAR 141-090-0035;
(c) There
is sufficient information for the Department to make a JD, including the geographic
extent of any waters identified, as appropriate; and
(d) There
is sufficient information for the Department to determine the removal-fill authorization
requirements or exemptions that apply to the wetlands or other waters identified
and/or the activities proposed.
(2) The Department
shall complete an initial review of the report within 120 calendar days from receipt
of the report and the fee.
(3) During
or upon completion of the Department's review, the Department may take the following
actions:
(a) Approve
all or a portion of the report and PJD by providing a written JD to the landowner,
agent or applicant and the consultant, if any, in accordance with OAR 141-090-0025(10).
(b) Request
missing information (report incomplete), clarification or additional data (see OAR
141-090-0035(9), (10), and (12)(h)).
(A) The request
will be made to the primary contact orally by telephone or in writing by, e-mail
or regular U.S. Mail.
(B) If the
Department makes a written request to the primary contact, the Department will copy
the request to the consultant, landowner and applicant, as appropriate.
(C) The primary
contact shall be responsible for promptly informing the Department of any change
in the primary contact during the Department's review process.
(c) Conduct
a site visit to confirm the report findings or obtain additional information;
(d) Withdraw
the report from further review if missing payment, additional or clarifying information,
or requested revisions, are not provided within 60 calendar days of the Department’s
written request;
(e) Require
revisions of the wetland map and the PJD based upon the report review, any additional
information requested, and a site visit, if conducted, and provide a JD accordingly
after consulting with the primary contact and report author, if different; or
(f) Reject
the report, along with a written explanation to the applicant, consultant, landowner
and agent, as appropriate. Examples of reasons for rejecting a report include, but
are not limited to:
(A) The work
has not been completed according to the technical requirements in OAR 141-090-0030.
(B) The report
does not, in the judgment of the Department, accurately reflect site conditions
or provide sufficient information for a JD;
(C) The report
contains major errors, omissions or inconsistencies according to the standards and
requirements in OAR 141-090-0035, such as but not limited to:
(i) Onsite
data is not collected (e.g., offsite or reconnaissance level report);
(ii) No paired
plots or number of paired plots is clearly inadequate for length and complexity
of wetland boundaries;
(iii) Data
forms with major gaps (e.g., no soils data collected);
(iv) Wrong
data form used;
(v) Clearly
erroneous data or conclusions;
(vi) All
water features are not mapped;
(vii) Permission
for a requested site visit is not granted;
(viii) Standard
report format is not followed (OAR 141-090-0035(1));
(ix) Report
cannot be field-verified because site preparation or construction has already commenced;
(x) The Department
requests and conducts a site visit and the wetland boundaries and sample plots are
not identified on the ground or cannot be accurately relocated by the consultant
or applicant (see OAR 141-090-0035(8)); or
(xi) After
the second written request for information or revisions, the resubmitted information
does not address all of the Department’s comments or requests, or introduces
new errors.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0045
Duration,
Expiration and Reissuance of Jurisdictional Determinations
(1) All JDs by the
Department shall be in writing and, except as provided in section (2) of this rule,
shall remain valid for a period of five years from the date of issuance. A JD may
be revised by the Department prior to the expiration date if:
(a) A field
investigation or new information reveals that site conditions or the geographic
extent of waters of this state are not consistent with the information in a report
or permit application submitted to the Department;
(b) Additional
site information or data is provided voluntarily by an applicant or landowner to
the Department;
(c) Additional
information is provided to or obtained by the Department in conjunction with a request
for reconsideration (OAR 141-090-0050), a contested case hearing associated with
an authorization application (ORS 196.825(6) and OAR 141-085-0575); a contested
case hearing provided under 141-090-0050(4)(a), or an independent review provided
under 141-090-0050(4)(b).
(d) Information
is provided to or obtained by the Department in conjunction with an appeal to the
U.S. Army Corps of Engineers of an Approved Jurisdictional Determination (33 CFR
Parts 320, 326 and 331); or
(e) New information
obtained by or provided to the Department shows a change in circumstances resulting
in a change in the jurisdictional area.
(2) JDs that
are issued in the form of a removal-fill authorization or those made for an enforcement
action are not subject to the five-year expiration.
(3) Upon
expiration, a report and JD are no longer valid for determining whether a state
removal-fill authorization may be required.
(4) If agency
approval is still needed or desired, and a wetland professional determines that
the wetland boundaries have not changed the Department may reissue the JD one time
for up to five years within one year of the expiration date.
(5) To request
the reissuance of a JD within one year of the expiration date, the landowner, agent,
or applicant with landowner permission must submit information prepared by a wetland
professional to the Department, as listed in (a) through (i).
(a) A new
fully completed wetland delineation/determination report cover form referencing
the recently expired wetland delineation number.
(b) Date
of the field inspection and the name of the person conducting the field inspection.
(c) A concise
description of any changes in land use, hydrology, and management of the site and
surrounding area relevant to the location and extent of the wetlands within the
study area since the last JD.
(d) A summary
of any relevant changes to the manual that have occurred since the most recent JD
was issued and a discussion of those changes on the JD.
(e) A description
of the method used to relocate the wetland boundary(ies) in the field and a summary
of the supporting evidence used to conclude that the location and extent of wetlands
is the same.
(f) A wetland
map(s) that meets the requirements in OAR 141-090-0035. The recently-expired map
can be used if the current mapping requirements are met and the study area boundary
is the same.
(g) A recent
aerial photograph with the study area boundary identified.
(h) Any figures
that may have changed from the recently expired wetland delineation report, such
as a smaller study area.
(i) Completed
data sheets from representative data plots illustrating the unchanged wetland conditions.
(6) Upon
receipt of the reissuance information outlined in subsections (5)(a) through (i),
the Department shall review the information within 120 days of receipt and may take
the following actions:
(a) Reissue
the original report for up to another 5 years;
(b) Request
missing information, clarification, or additional information;
(c) Conduct
a site visit to confirm the report’s findings or to collect additional information;
(d) Withdraw
the request for reissuance from further review if missing additional or clarifying
information, or requested information is not provided within 60 calendar days of
the Department's written request; or
(e) Disagree
with the conclusion that the wetland boundaries have not changed and require a new
report that satisfies the requirements of OAR 141-090-0035 and payment of the fee
described in 141-090-0032 for review of a new delineation report.
(7) At the
discretion of the Department and within staffing ability, a landowner can request
the Department to conduct a site visit to determine if a recently expired JD can
be reissued or if a new report is required. If only minor boundary changes have
occurred, new boundaries may be flagged at the discretion of staff during a site
visit and the landowner shall produce and submit a new map that reflects the changes
and meets the mapping requirements in OAR 141-090-0035.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0050
Request for
Reconsideration, Contested Case, and Independent Review
(1) A JD by the
Department may be reconsidered upon written request to the Department by the landowner,
agent, or applicant with landowner approval within six months of the date of the
JD (date the letter or form was signed by the Department). The request for reconsideration
initiates an informal review process.
(2) New information
may be provided by the applicant, landowner, agent or the Department, or may be
requested by the Department, as part of the reconsideration process.
(3) A reconsideration
may result in a modified JD or in the reaffirmation of the original JD.
(4) In the
event that the landowner, agent, or applicant with landowner permission disagrees
with the reconsideration decision, the applicant, landowner or agent may:
(a) Request
a contested case proceeding pursuant to ORS 183.413 through 183.470 by submitting
a written request so that it is received by the Department within 21 calendar days
of the reconsideration decision; or
(b) Request
an independent review per Oregon Laws 2012, c. 108, § 2 by submitting a written
request so that it is received by the Department within 21 calendar days of the
reconsideration decision. The independent review option is available only when the
disagreement is over a wetland determination or delineation that has been the subject
of reconsideration by the Department. The independent review option is not available
for ordinary high water or highest measured tide determinations and does not involve
a review of whether the wetland or other water is subject to state regulation.
(5) The Department
will maintain a list of persons that are qualified under Oregon Laws 2012, c. 108,
§ 2 to be independent reviewers and that have qualified through a contract
solicitation. If there are no such persons, the list shall be blank.
(6) Upon
receipt of the written request for an independent review, the Department will contact
all of the persons on the list maintained by the Department under section (5) of
this rule and request that they either disclose all prior knowledge of the land
parcel that is the subject of the review and any potential or actual conflicts of
interests, or state that they will not serve as an independent reviewer in the review.
The person shall sign the disclosure to certify that the disclosure is accurate.
The Department will develop a list of persons that made the required disclosures
and that have not identified any interest in the land parcel that is the subject
of the review. The Department shall provide the list and the signed disclosures
to the requestor of the request for an independent review.
(7) The requestor
and the Department shall each select one person from the list developed by the Department
under section (6) of this rule.
(8) The two
selected independent reviewers shall select a third person from the list developed
by the Department under section (6) of this rule. If the two selected reviewers
do not jointly agree on the selection of a third reviewer, the Department shall
request the US Army Corps of Engineers to provide a reviewer who has at least five
years of experience with wetland delineation per the manual.
(9) The panel
of independent reviewers shall submit to the Department and the requestor a written
itemized estimate of the costs of the independent review, including all expenses
and fees.
(10) Upon
selection of three independent reviewers, the Department shall enter agreements
with each of the independent reviewers, except for an independent reviewer provided
by the U.S. Corps of Engineers. The agreements shall include but not be limited
to the following:
(a) A maximum
compensation amount not to exceed 120% of the sum of the written itemized estimates
of the costs of the independent review provided to the Department by the panel of
independent reviewers under section (9) of this rule;
(b) A maximum
term for performance of the independent review of 60 calendar days from the date
on which all three independent reviewers were selected; and
(c) A requirement
that the panel of independent reviewers shall determine the cost of the review,
subject to the maximum compensation amount.
(11) The
Department will enter into a written agreement with the requestor which includes
the following:
(a) The list
of the three independent reviewers selected;
(b) A promise
by the requestor to deliver a deposit to the Department within 5 calendar days in
the amount of 60% of the sum of the written itemized estimate;
(c) A provision
stating that the determination of the panel of independent reviewers shall be final
and binding, with no opportunity for a contested case or any judicial review;
(d) A provision
that the panel of independent reviewers will review the record, conduct a site visit
and gather additional information if needed, write a decision that includes findings
of fact, and a conclusion that either affirms or modifies the wetland determination
or delineation issued by the Department after reconsideration; and
(e) A promise
by the requestor to pay 60% of the cost of the independent review, including all
expenses and fees, regardless of the outcome of the review. If the amount exceeds
the deposit provided under section 9, the requestor shall pay the excess amount
to the Department within 15 calendar days of the issuance of the decision by the
panel of independent reviewers. If the amount is less than the deposit provided
under section 9, the Department will return the excess deposit to the requestor
within 15 calendar days of the issuance of the decision by the panel of independent
reviewers.
(12) The
criteria by which the panel of independent reviewers will evaluate the wetland delineation
or determination shall include only the following:
(a) OAR 141-090-0005
through 141-090-0020, 141-090-0030, and 141-090-0035;
(b) OAR 141-090-0045,
if the wetland delineation was reissued by the Department; and
(c) The manual,
as defined in OAR 141-090-0020(17).
(13) The
record for the independent review consists of the following:
(a) The original
report submitted per OAR 141-090-0035;
(b) All documents
related to the JD per OAR 141-090-0025 or OAR 141-090-0040; and
(c) All documents
related to the Department’s reconsideration per OAR 141-090-0050.
(14) The
panel will take the following actions:
(a) Review
the record;
(b) Gather
additional information and conduct a site visit, if needed; and
(c) Draft
findings of fact and a conclusion that either affirms or modifies the wetland determination
or delineation that the Department issued after reconsideration.
(15) Within
60 days of the date on which all three independent reviewers were selected, the
panel will submit a decision in writing to the Department and to the Requestor that
includes findings of fact, a conclusion, and a decision that either affirms of modifies
the wetland determination or delineation that the Department issued after reconsideration.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279 & 2012 OL Ch. 108

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13
141-090-0055
Effective
Date
These rules become
effective on January 1, 2013.
Stat. Auth.: ORS
196.845 & 196.692

Stats. Implemented:
ORS 196.800 – 196.990, 196.600 – 196.665, 196.668 – 196.692 &
197.279

Hist: DSL
3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL
6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use

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