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(205) "Streambank Stabilization" means those projects which prevent or limit erosion, slippage, and mass wasting; including, but not limited to bank re-sloping, planting of woody vegetation, bank protection (physical armoring of banks using rock or woody material, or placement of jetties or groins), or erosion control.

(206) "Structure" means an object, device (e.g., piling, culvert), excavation or alteration (e.g., irrigation ditch or push-up dam) that is constructed, installed or erected, and is designed to accomplish a specific purpose. Structures require a location in waters of the state (e.g., push-up dams), or are attached to and/or interconnected with waters of the state (e.g., irrigation or drainage ditch).

(207) "Subbasin" is a drainage area described by the United States Geologic Survey fifth field hydrologic unit.

(208) "Substrate" means the mineral and/or organic material that forms the bed of a waterway.

(209) "Success Criteria" means the measurable threshold that establishes when compensatory mitigation, compensatory wetland mitigation or permit conditions objectives have been met (e.g. The cover of native emergent species will be at least 80% as measured by belt transects). Also called "performance standards" or "success targets."

(210) "Suction Dredge" means a machine equipped with an internal combustion engine or electric motor powering a water pump that is used to move submerged bed materials by means of hydraulic suction. These bed materials are processed through an attached sluice box for the recovery of gold and other minerals.

(211) "Suction Dredging" means the use of a suction dredge for the recovery of gold and other minerals.

(212) "Surety Bond" means an indemnity agreement in a sum certain executed by the permittee as principal that is supported by the performance guarantee of a corporation licensed to do business as a surety in the state of Oregon.

(213) "Temporary Impacts" means those impacts that do not result in the permanent loss of function and/or area and are rectified within twelve (12) months of project completion.

(214) "Tidal Bay" means estuaries, ocean coves, inlets and similar semi-enclosed bodies containing water influenced by the tide.

(215) "Tidegate" means a structure placed in an estuarine channel designed to regulate water levels.

(216) "Tile Drain System" means a subsurface conveyance system used to drain soils for agricultural production or other purposes.

(217) "Toe of the Bank" means the distinct break in slope between the stream bank or shoreline and the stream bottom or marine beach or bed, excluding areas of sloughing. For steep banks that extend into the water, the toe may be submerged below the ordinary high water line. For artificial structures, such as jetties or bulkheads, the toe refers to the base of the structure, where it meets the streambed or marine beach or bed.

(218) "Uplands" are any land form that does not qualify as waters of the state.

(219) "Unique Features" means those physical, biological, chemical, and esthetic characteristics and attributes of an estuary that are uncommon, extraordinary, rare, threatened, or endangered.

(220) "U.S. Army Corps of Engineers" or "Corps" means the United States Army Corps of Engineers.

(221) "Vernal Pools" are types of wet meadow habitat areas with specific, diagnostic plant assemblages that are intermittently flooded with shallow water for extended periods during the cool season, but dry for most of the summer.

(222) "Violation" means removing material from or placing fill in any waters of this state without an authorization or in a manner contrary to the conditions set out in an authorization issued under the Removal-Fill law or these rules.

(223) "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.

(224) "Water Resources" includes not only water itself but also aquatic life and habitats and all other natural resources in and under the waters of this state.

(225) "Waters of this State" means natural waterways including all tidal and nontidal bays, intermittent and perennial streams (i.e., streams), lakes, wetlands and other bodies of water in this state, navigable and nonnavigable, including that portion of the Pacific Ocean, which is in the boundaries of this state. "Waters of this state" does not include the ocean shore, as defined in ORS 390.605.

(226) "Watershed" means the entire land area drained by a stream or system of connected streams such that all stream flow originating in the area is discharged through a single outlet.

(227) "Weir" means a levee, dam or embankment or other barrier placed across or bordering a waterway to:

(a) Measure or regulate the flow of water;

(b) Divert fish into a trap; or

(c) Raise the level of the waterway or divert stream flow into a water distribution system.

(228) "Wet Perimeter", as used in OAR 141-089-0245 thru 0275, means the area of the stream that is under water, or is exposed as a nonvegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs.

(229) "Wetland Hydrology" means the permanent or periodic inundation or prolonged saturation sufficient to create anaerobic conditions in the soil and support hyrdrophytic vegetation.

(230) "Wetland Maintenance" means the process of supporting or preserving the condition or functions of a wetland as a management component of a compensatory wetland mitigation plan.

(231) "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.

(232) "Woody Plants" means trees and shrubs.

[ED. NOTE: Figures referenced are available from the agency.]

Stat. Auth.: ORS 196.600 - 196.692 & 196.800 - 196.990
Stats. Implemented: ORS 196.600 - 196.692 & 196.800 - 196.990
Hist.: LB 15, f. 2-1-74, ef. 2-25-74; LB 1-1978(Temp), f. & ef. 1-27-78; LB 3-1978, f. & ef. 5-19-78; LB 6-1984, f. & ef. 12-17-84, Renumbered from 141-085-0100; LB 8-1991, f. & cert. ef. 9-13-91; LB 3-1992, f. & cert. ef. 6-15-92; DSL 4-1998, f. & cert. ef. 5-1-98; DSL 2-1999, f. & cert. ef. 3-9-99; DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2003, f. & cert. ef. 7-10-03; DSL 2-2003(Temp) f. & cert. ef. 11-26-03 thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0015

Removal-Fill Jurisdiction by Volume of Material and Location of Activity

(1) The Department's determination as to whether a removal-fill authorization is required depends primarily upon a project's position relative to waters of the state and the volume of the fill and/or removal and the project purpose. Uplands are generally not subject to these rules except when they are used for compensatory wetland mitigation or compensatory mitigation sites.

(2) To be subject to the requirements of the removal-fill law, the removal or fill must be within "waters of the state." The types of waters of the state and the physical limits of removal-fill jurisdiction are as follows:

(a) Estuaries and tidal bays, to the elevation of highest measured tide;

(b) The Pacific Ocean, from the line of extreme low tide seaward to the limits of the territorial sea,

(c) Rivers, intermittent and perennial streams, lakes, ponds and all other bodies of water (except wetlands) subject to these rules, to the ordinary high water line, or absent readily identifiable field indicators, the bankfull stage;

(d) Wetlands (defined in OAR 141-085-0010), within the wetland boundary delineated in accordance with OAR 141-090-0005 to 0055.

(e) "Other Bodies of Water," as used in ORS 196.800(14) are the following artificially created waters which are considered "waters of the state":

(A) Wetlands and ponds artificially created from uplands, unless specified in OAR 141-085-0015(4) or (5) that are:

(i) Equal to or greater than (1) one acre in size; or

(ii) Identified in a removal-fill authorization as a compensatory mitigation site.

(B) Except as described in OAR 141-085-0015(3) and (6), channels or ditches that are artificially created from upland that:

(i) Contain food and game fish; and

(ii) Have free and open connection to waters of the state.

(3) "Other Bodies of Water" do not include existing irrigation canals and ditches that meet the following requirements:

(a) Are operated and maintained for the primary purpose of conveying water for irrigation; and

(b) Are dewatered during the non-irrigation season except for water incidentally retained in isolated low areas of the canal/ditch or for stock water runs, provision of water for fire services or storm water runoff.

(4) "Other Bodies of Water" do not include wetlands artificially created from uplands of up to one acre in size for the purpose of controlling, storing or maintaining stormwater (ORS 196.687).

(5) "Other Bodies of Water" do not include channels, wetlands or ponds of any size artificially created from uplands for the purpose of:

(a) Wastewater treatment;

(b) Farm or stock watering (including crop irrigation);

(c) Settling of sediment;

(d) Fire suppression;

(e) Cooling water;

(f) Surface mining, where the site is managed for interim wetlands use or not protected as a significant wetland in the comprehensive plan (pursuant to ORS 196.672(10));

(g) Log storage; or

(h) Aesthetic purposes, including golf course features.

(6) "Other Bodies of Water" do not include drainage ditches alongside roads and railroads where the ditch is:

(a) Ten (10) feet wide or less at the ordinary high water line;

(b) Artificially created from upland or from wetlands (e.g. in mapped hydric soils);

(c) Not adjacent and connected or contiguous with other wetlands; and

(d) Do not contain food or game fish.

(7) Even if located within an area described in OAR 141-085-0015(2), to be subject to the removal-fill law and these rules the removal-fill must also be of a volume that meets one of the following thresholds and must not be exempt from removal fill authorization as described in OAR 141-085-0020:

(a) Oregon Scenic Waterways, the threshold volume is any amount greater than (0) zero, except for recreational prospecting, as defined in ORS 390.835(18)(c) and OAR 141-0100, and any non-motorized activities;

(b) Streams designated as Essential Indigenous Salmonid Habitat (ESH) (see OAR 141-102, the threshold volume is one cubic yard at any one site (for prospecting and non-motorized activities), and cumulatively no more than five cubic yards (for prospecting and non-motorized activities), or an authorization is required (unless exempted under OAR 141-085-0020);

(c) All other waters of the state subject to these rules, the threshold amount is no more than 50 cubic yards (or the equivalent weight in tons) of material removed or filled, or an authorization is required (unless exempted under OAR 141-085-0020).

(8) Fill volume is measured to the elevation of jurisdiction for all waters of the state; removal volume for all waters includes the full extent of the excavation within the jurisdictional area. For wetlands, fill volume is measured to the height of the fill excluding buildings.

(9) When calculating the volume for channel relocation the threshold is met if more than 50 cubic yards of material is removed in constructing the new channel or if it would require more than 50 cubic yards of material to completely fill the old channel.

(10) Removal-fill activities that are exempt under state law may nonetheless be regulated under applicable federal laws, including the federal Endangered Species Act (16 U.S.C. 1531 et seq.), Section 404 of the federal Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), as amended.

Stat. Auth.: ORS 196.800, 196.810 & 390.835
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: LB 15, f. 2-1-74, ef. 2-25-74; LB 6-1984, f. & ef. 12-17-84, Renumbered from 141-085-0105; LB 3-1992, f. & cert. ef. 6-15-92; DSL 4-1998, f. & cert. ef. 5-1-98; DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2003, f. & cert. ef. 7-10-03; DSL 1-2004, f. & cert. ef. 5-21-04

141-085-0018

Required Authorizations; Permits and Authorizations Generally

(1) Unless exempt as provided in OAR 141-085-0020, no person may conduct any removal-fill in waters of the state and within the thresholds (OAR 141-085-0015) without first being authorized by the Department by one of the following authorization types as appropriate:

(a) An individual removal-fill permit; or

(b) A letter of authorization issued under a General Authorization as defined in OAR 141-085-0070; or

(c) An emergency letter of authorization issued in accordance with OAR 141-085-0066.

(2) The Department shall prescribe the type of authorization to be issued.

(3) Each type of authorization, when issued, shall include, but not be limited to, the following:

(a) Project description.

(b) Expiration date. The date of expiration shall be no more than five years from the date of issue, unless authorized by the Department in accordance with OAR 141-085-0031 or 141-089.

(c) Permit or authorization holder information. Name, address and telephone number of the authorization holder and the person responsible for complying with the permit conditions;

(d) Authorization conditions. A comprehensive, specific listing of all performance requirements to be met by the authorization holder in order to complete the removal-fill activity in a manner that complies with these rules or any general authorization; and

(e) Compensatory mitigation plan. Compensatory freshwater or estuarine mitigation plans for all wetlands and compensatory mitigation plans for other waters as applicable.

Stat. Auth.: ORS 196.800, 196.810, 196.825 & 196.850
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2004, f. & cert. ef. 5-21-04

141-085-0020

Activities Exempt From Removal-Fill Authorization Requirements

The following activities, uses or structures are exempt and not subject to the removal-fill law or these rules. These exemptions do not apply to removal-fill activities in Oregon Scenic Waterways. The Department shall determine if a project is exempt from the requirements of OAR 141-085-0018 by applying the standards described in this section.

(1) Exempt forest management practices. These rules do not apply to removal-fill directly connected (as defined in OAR 141-085-0010) with a forest management practice when conducted within the beds and banks of non-navigable waterways on forestlands and in accordance with the Oregon Forest Practices Act (ORS Chapter 527). Contact the Department for the latest list of state-owned navigable waterways.

(2) Exempt fills for certain dams and water diversion structures. These rules do not apply to fills within waters of the state for the construction, operation and maintenance of dams or other water diversions for which authorizations or certificates have been or shall be issued by the Oregon Water Resources Department (WRD) under ORS Chapters 537 or 539 (water appropriation) and for which preliminary authorizations or licenses have been or shall be issued under ORS 543 or 543A (hydropower). These rules also do not apply to annual work required to activate, operate and maintain flashboard type dams within waters of the state as specifically permitted by WRD. These exemptions apply only when the dam or diversion is referenced in the water permit or certificate. A removal-fill authorization is required for construction of certain structures associated with a dam or water diversion facility (such as but not limited to: fishways, streambank enhancement, fish habitat enhancement, access roads and erosion protection) and for removal activities for projects authorized by ORS 537, 539, or 543.010 to 543.620.

(3) Navigational Servitude. These rules do not apply to removal fill within waters of the state conducted by any agency of the Federal Government acting in the capacity of navigational servitude in connection with a federally authorized navigation channel (i.e., channel dredging within navigational servitude channel). Disposal of dredged material within the ordinary high water line of the waterway containing the federally authorized navigation channel is considered to be an activity covered by this exemption.

(4) These rules do not apply to "normal farming and ranching activities" on converted wetlands, as defined in OAR 141-085-010. Such activities include the following:

(a) Plowing;

(b) Grazing;

(c) Seeding;

(d) Cultivating;

(e) Conventional crop rotation;

(f) Harvesting for the production of food and fiber; and

(g) Upland soil and water conservation practices or reestablishment of crops under federal conservation reserve program provisions.

(5) These rules do not apply to the following activities conducted on exclusive farm use zoned land as designated in the city or county comprehensive plan and zoning ordinance.

(a) Drainage or maintenance of farm or stock ponds;

(b) Maintenance of farm roads where such roads are maintained in accordance with construction practices that avoid significant adverse affect to wetlands. Up to fifty (50) cubic yards of borrowed material for exempt road maintenance annually may come from waters of the state. Maintenance activities shall be confined to the same limits of the originally approved structure(s).

(c) Subsurface drainage, by deep ripping, tiling or moling on converted wetlands;

(d) Any activity described as a farm use in OAR 141-085-0010, including farm road construction and maintenance, that is conducted on prior converted cropland as defined in OAR 141-085-0010, so long as agricultural management of the land has not been abandoned for five or more years.

(6) Exemptions do not apply to non-farm uses. The exemptions in subsections (4) and (5) of this section (OAR 141-085-0020) shall not apply to any fill or removal which involves changing any wetlands to a non-farm use.

(7) Exempt "activities customarily associated with agriculture". Fill or removal activities involving less than 50 cubic yards of material as defined in OAR 141-102 and 141-085-0010 for activities customarily associated with agriculture within Essential Indigenous Anadromous Salmonid Habitat streams (as designated under OAR 141-102-0030) are exempt from these rules.

(8) Exempt maintenance or reconstruction of certain structures. Maintenance, or reconstruction of certain structures within waters of the state such as dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches, irrigation structures and tile drain systems are exempt from the requirements of these rules, provided that:

(a) The structure was serviceable within the past five (5) years; and

(b) Such 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.

(9) Exempt maintenance, repair, replacement or removal of culverts. These rules do not apply to removal-fill activities within waters of the state for the maintenance, reconstruction or removal of culverts as defined in OAR 141-085-0010. This exemption includes culvert replacement (without regard to the size of the replacement culvert) when all of the following apply:

(a) The removal fill is limited to the extent of the existing road prism (as defined in OAR 141-085-0010) and may, consistent with OAR 141-085-0010(124), expand the original footprint of the structure by up to 20 percent if fish passage design requires removal or fill outside the road prism in order to successfully pass fish, the removal/fill volume and area of impact is limited to the minimum necessary to restore the function of the structure and provide fish passage but not more than 20 percent of the original footprint;

(b) The culvert was serviceable within the past five (5) years;

(c) The removal-fill does 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 and placement of the culvert.

(d) The culvert is replaced in a manner that assures fish passage and complies with the design guidelines of the Oregon Department of Fish and Wildlife (e.g. counter sinking the new culvert to accommodate the natural bank full width and replicating the stream's natural streambed configuration).

(10) Exempt push-up dams. A push-up dam, as defined in OAR 141-085-0010, within waters of the state, that was first built prior to the effective date of the Removal-Fill Law in 1967 (September 13, 1967) is exempt from the authorization requirements under these rules if:

(a) It has been reconstructed and used within the past five (5) years; and

(b) It has the same impact as when it was first constructed (i.e., size, extent and location); and

(c) It is operated in a manner consistent with the water right certificate and ORS 540.510(5).

(11) On-going maintenance of push-up dams allowed. Once authorized by the Department, a post-1967 push-up dam within waters of the state may be maintained during the irrigation season and reconstructed each successive season provided the work is done in compliance with all original permit conditions and the push-up dam's impact to the stream is no more than when it was first authorized (i.e., it still has to allow for fish passage). A push-up dam involving less than fifty (50) cubic yards, located within a stream designated as Essential Indigenous Anadromous Salmonid Habitat (see OAR 141-102) and used for "activities customarily associated with agriculture" as defined in OAR 141-102 and 141-085 is exempt from authorization requirements.

(12) Exempt maintenance including emergency reconstruction of roads and transportation structures. These rules do not apply to removal-fill for maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable roads or transportation structures such as groins and riprap protecting roads, causeways and bridge abutments or approaches. Volumes and area of impact should be limited to the minimum necessary to restore the serviceability and function of the structure.

(13) Exempt small-scale prospecting and non-motorized activities within Essential Indigenous Anadromous Salmonid Habitat. Prospecting or other non-motorized activities within waters of the state resulting in the removal, fill or alteration of less than one (1) cubic yard of material at any one site and, cumulatively not more than five (5) cubic yards of material, from within an Essential Indigenous Anadromous Salmonid Habitat stream segment (as designated in OAR 141-102) in a single calendar year do not require authorization under these rules. Such exempt prospecting or non-motorized activity must remain within the bed or wet perimeter of the waterway. This exemption does not allow removal or fill within waters of the state at any site where fish eggs are present.

(14) Exempt fish passage and fish screening in Essential Indigenous Anadromous Salmonid Habitat only. The construction and maintenance, involving less than fifty (50) cubic yards of fill or removal, of fish passage and fish screening structures built, operated and maintained in Essential Indigenous Anadromous Salmonid Habitat under ORS 498.311, 498.316, 498.326, or 509.580 to 509.645 do not require authorization under these rules. This exemption includes removal of material or gravel bars that inhibit passage or prevent screens from functioning properly.

(15) Any removal-fill not exempt under this section (OAR 141-085-0020) is subject to authorization requirements.

Stat. Auth.: ORS 196.810 & 196.805
Stats. Implemented: ORS 196.800 - 196.990
Hist.: LB 6-1984, f. & ef. 12-17-84; LB 3-1991, f. 6-14-91, cert. ef. 7-1-91; LB 3-1992, f. & cert. ef. 6-15-92; DSL 2-1999, f. & cert. ef. 3-9-99; DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2003, f. & cert. ef. 7-10-03; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0021

Oregon State Programmatic General Permit

(1) The State Programmatic General Permit (SPGP) authorizes work in waters of the United States within the State of Oregon for activities that would cause no more than minimal adverse environmental effects, individually and cumulatively, subject to the terms, conditions and limitations contained in the SPGP.

(2) The SPGP has been issued by the Portland District of the US Army Corps of Engineers as provided by 33 CFR 325.5 (c)(3), pursuant to Section 404 of the Clean Water Act (P.L. 95-217) and Section 10 of the River and Harbor Act of 1899, as amended.

(3) The purpose of the SPGP is to reduce duplicative state and federal regulatory processes, by providing a single application process for applicants and make better use of limited government resources while enhancing protection and conservation of the water resources of the state.

(4) The SPGP is a type of general permit, issued by the Corps that provides federal authorization for certain activities that also are regulated by the Department under state law. This SPGP is based on the existing state Removal-Fill Law and the administrative rules promulgated to administer the law.

(5) The SPGP will be the only vehicle where removal fill applicants can simultaneously obtain approvals under all of these state and federal mandates in one, integrated package. With one exception, to be eligible for the SPGP, removal fill activities must be no larger than 0.5 acre of wetland fill and no more than 1,000 cubic yards of fill or removal (this is a cumulative total and not an additive total, i.e. wetland and other waters removal or fill cannot exceed 0.5 ac. or 1000 cu. yds. combined) and be one of the following categories: The thresholds do not apply to wetland restoration.

(a) Streambank protection;

(b) Road construction, repair, and improvements;

(c) Site preparation for construction of buildings and related features;

(d) Stream and wetland restoration;

(e) Minor fills and removals;

(f) Water control structures (repair of existing structures and necessary; improvements to provide or improve fish passage);

(g) Utility lines; and/or

(h) Piling installation and removal.

(6) The Department will advise applicants as to how to qualify a project for the SPGP. A project that is approved by the Department under the SPGP will be in compliance with the federal Endangered Species Act.

Stat. Auth.: ORS 196.600 - 196.905, other auth. Art. VIII, Sec. 5 of the Oregon Consitution
Stats. Implemented: ORS 196.600 - 196.905
Hist.: DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0022

Removal-Fill Permits Authorized in Site Selection or Site Certificate Proceedings; Hazardous Substances

(1) Upon submission by the applicant of proper applications and payment of the proper fees, the Department shall issue the permits authorized by the authorized siting entity, 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. This section applies to:

(a) The decisions of the Corrections Facility Siting Authority, pursuant to ORS 421.628, relating to siting corrections facilities;

(b) The decisions of the Environmental Quality Commission, pursuant to ORS 459.047, relating to siting solid waste land fills; and

(c) The decisions of the Energy Facility Siting Council, pursuant to ORS 469.300 et seq. related to siting energy facilities.

(2) The standards contained in these removal-fill program rules do not govern complete applications received by any of the agencies listed above before the effective date of these removal-fill program rules. For all such applications, the standards in effect as of the date of receipt apply to consideration of whether the applicable agency shall approve or deny the application.

(3) Under ORS 465.315, no removal-fill authorization is required for the portion of any removal or remedial action conducted on-site where such removal or remedial action has been selected or approved by the Department of Environmental Quality. The responsible party must notify the Department of its intended action, pay applicable fees in accordance with OAR 141-085-0064, and must comply with protective measures that the Department would otherwise apply.

Stat. Auth.: ORS 421.628, 459.047 & 469.300
Stats. Implemented: ORS 421.628, 459.047 & 469.300
Hist.: DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2003, f. & cert. ef. 7-10-03; DSL 1-2004, f. & cert. ef. 5-21-04

141-085-0023

Expedited Process for Industrial or Traded Sector Sites

(1) The Department shall offer an expedited process of planning and authorizing removal-fill within waters of the state for certain industrial or traded sector sites identified by the Governor's Office of Economic Revitalization (GERT) or having the potential to be certified by the Oregon Economic and Community Development Department.

(2) The Director shall, upon the request of GERT or the Oregon Economic and Community Development Department, designate a site for expedited planning and processing as described in OAR 141-085-0023 of this rule. GERT or the OECDD shall provide the contact information for the project proponent or sponsor. The proponent or sponsor shall have authority to authorize the Department or its agents physical access to the site.

(3) The Director shall assign a project leader from the Department to work with the sponsor and the other applicable regulatory and natural resource agencies. Such work includes assistance and guidance in the preparation of reports, plans and permits application documents necessary to expedite issuance of an authorization under these rules or to avoid the need to obtain an authorization by planning the project in such a way so as to not be within the jurisdiction of these rules.

(4) The project sponsor, the Department and any other parties, public or private, deemed appropriate by the primary partners (i.e. the Department and the project sponsor(s)) will enter into a partnership agreement for the project that outlines the roles and responsibilities of each party and the performance requirements of all involved including a projected schedule for completion and approval of all work.

(5) The work to be accomplished by the Department through the partnership could include, but is not limited to, the following:

(a) Coordination and direction of contracts for:

(A) The determination and delineation of waters of the state within the project site or mitigation site, if needed;

(B) The completion of functional assessments for the waters of the state within the project site or mitigation site if needed; and/or

(C) The completion of removal-fill authorization application materials (including but not limited to: alternatives analysis; compensatory mitigation plans).

(b) Review and concurrence with jurisdictional determinations in accordance with OAR 141-090;

(c) Technical assistance and guidance in the development of the site master plan with an emphasis on the mitigation (as defined in OAR 141-085-0115) of project impacts to waters of the state;

(d) Technical assistance in the preparation of removal-fill authorization application materials including guidance on the most appropriate and expedient removal-fill authorization to seek from the Department;

(e) Assistance with the early identification and resolution of issues raised by other agencies and the public; and/or

(f) Expedited review of removal-fill authorization application and prompt permit decision in accordance with these rules.

(6) The Department will endeavor to provide the assistance as described in OAR 141-085-0023 to the maximum extent possible taking into account budget constraints and limitations.

(7) The Department recognizes that time is of the essence in fulfilling the requirements of any partnership agreement and will carry out its responsibilities as expeditiously as possible.

Stat. Auth.: ORS 421.628, 459.047 & 469.300
Stats. Implemented: ORS 421.628, 459.047 & 469.300
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04

141-085-0024

Pre-Application Conference

(1) A person contemplating conducting an activity subject to removal-fill authorization requirements (including projects that require a federal permit or involve federal funding) may request a pre-application conference with the Department.

(2) At a pre-application conference, the Department will address pertinent factors based upon the information presented by the applicant, including:

(a) Whether the proposed project will require an authorization;

(b) The application requirements and type of authorization needed;

(c) Ways to avoid and minimize adverse impacts to the water resources and navigation, fishing and public recreation uses;

(d) The authorization review standards that will be applied to the proposed project;

(e) The proposed compensatory mitigation plan;

(f) The need to provide additional information with the application; and/or

(g) The need to coordinate with certain agencies or public interests.

Stat. Auth.: ORS 196.825
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0025

Application for Individual Removal-Fill Permits

(1) Any person planning a project subject to the Removal-Fill Law or these rules must obtain an individual permit or other authorization from the Department before conducting the removal fill. Persons may submit an application in order for the Department to determine if a removal fill is subject to these rules and requires an authorization.

(2) To obtain an individual permit, a complete application is required in order for the Department to process the application and issue the permit. The applicant is responsible for providing sufficient detail in the application to enable the Department to render the determinations and decisions required by these rules. The same level of documentation and analysis will not be required for all types of projects. The intensity of the analysis and therefore the amount and quality of information needed, will vary depending upon the size of the project and related severity of the expected adverse impacts. For example, projects with minimal impacts on small areas of waters of the state and not involving any listed species will require less documentation than will projects with major impacts on large areas of waters of the state that involve listed species.

(3) A completed and signed application on forms provided by the Department along with any maps, photos and drawings, as required, that includes the following information:

(a) Applicant and property owner information including name, address and phone number;

(b) Project site location information including Township, Range, Quarter/Quarter Section and Tax Lot(s); latitude and longitude, street location if any; and location map with site location indicated;

(c) Location of any off-site disposal or borrow sites if these sites contain waters of the state;

(d) Project information including proposed activity, specific project description, project plan and section views, fill and/or removal volumes expressed in cubic yards (total in waters of the state), and, for wetlands, also the size in acres (to the nearest 0.01 acre);

(e) Description of the purpose and need for the project;

(f) Identification of the limits (area) of the waters of the state (e.g. wetland delineation or determination) and the proposed impact to waters of the state associated with the project;

(g) A written description of any changes that the project may make to the hydraulic and hydrologic characteristics (e.g., general direction of stream and surface water flow, estimated winter and summer stream flow volumes.) of the waters of the state, and an explanation of measures taken to avoid or minimize any adverse effects of those changes. Adverse effects to be considered include but are not limited to:

(A) Impeding or restricting the passage of normal or expected high flows (unless the project purpose is for fill to impound water);

(B) Increasing water flows from the project;

(C) Relocating water or redirecting water flow;

(D) Causing flooding or erosion downstream of the project.

(h) A description of the existing biological and physical characteristics and condition of the water resource and identification of the adverse effects of project development;

(i) A description of the navigation, fishing and public recreation uses, if any, at the project site;

(j) A written analysis of alternatives that were evaluated to determine the practicable alternative to avoid and minimize impacts to waters of this state, including water resources and navigation, fishing and public recreation uses. A practicable alternative is one that is capable of being done (i.e., feasible) and proposed on a site that is available to the applicant for the project purpose. Sites that are not presently owned or controlled by the applicant, but could be reasonably obtained, utilized, expanded, or managed to fulfill the project purpose may be considered if otherwise feasible. The analysis must explain why the applicant chose the option identified in the application. An alternatives analysis is needed for any estuarine fills. Circumstances when an alternatives analysis is required in an application include but are not limited to projects involving conversion to upland of rare wetland types (such as forested bogs and vernal pools). An application for a removal-fill that meets the following criteria need not include an elaborate explanation of the applicant's process to determine the practicable alternative:

(A) Those located in waters of the state with limited aquatic life and habitats and limited navigation, fishing and public recreation uses.

(B) Small in size; in relationship to the affected waters of the state.

(C) Those that cause only temporary impacts.

(k) Names and addresses of adjoining property owners (including those across a stream or street from the project as required by the Department);

(l) Local government land use information (as shown on the application form);

(m) Coastal zone certification statement, if project is in the coastal zone (as shown on the application form);

(n) Any information, known by the applicant, concerning the presence of any listed species. Information may include but is not limited to:

(A) A site survey;

(B) A database query completed by the Oregon Natural Heritage Program; or

(C) A project-specific or programmatic Biological Assessment and/or approved Biological Opinion and/or a letter from the pertinent state or federal agency;

(o) Any information, known by the applicant, concerning historical, cultural and/or archeological resources. Information may include but is not limited to a statement on the results of consultation with affected Tribal governments and/or the Oregon State Historic Preservation Office.

(4) If reasonably expected adverse impacts to the water resources cannot be avoided, minimized, rectified or reduced, a complete application must also include a compensatory wetland mitigation plan as defined in OAR 141-085-0010 that will meet the requirements in OAR 141-085-0121 thru 0176, or a compensatory mitigation plan, as required in 141-085-0115, or a rehabilitation plan for temporary impacts to waters of the state, as required in OAR 141-085-0171.

(5) If the proposed removal fill involves a wetland, a wetland determination or delineation report that meets the requirements in OAR 141-090-005 thru 0055 shall be submitted by the applicant or required by the Department:

(a) A wetland delineation is generally needed to determine precise wetland boundaries and to accurately identify proposed impacts (fill and/or excavation) and determine Compensatory Wetland Mitigation ratio requirements. In some circumstances, the Department may conclude that a wetland determination is sufficient to identify wetland impacts or to establish the extent, if any, of wetland impacts.

(b) Whenever possible, wetland determination or delineation reports should be submitted to the Department for a jurisdictional determination well in advance of a permit application (i.e., within 90 days of submitting an application) to ensure that the project design is based upon approved wetland boundaries and to ensure that the application will not need to be revised and resubmitted if, during the evaluation process, the wetland delineation report is found to be inaccurate.

(6) If the proposed removal fill involves a wetland, the application shall include a functional attribute assessment of the wetland as described in OAR 141-085-0121.

(7) If the proposed removal fill will directly affect an estuary as defined in OAR 141-085-0010, a complete application must include:

(a) An estuarine resource replacement plan that meets the requirements in OAR 141-085-0240 to 0266 (rather than the compensatory mitigation plan requirements cited in (4); and

(b) For any project involving the placement of fill for a non-water dependent use as defined in OAR 141-085-0010, a written statement that analyzes the following criteria:

(A) The public use of the proposed project;

(B) The public need for the proposed project;

(C) The availability of alternative, non-estuarine sites for the proposed use; and

(D) The proposed project's identified adverse effects on public navigation, fishery and recreation.

(8) An applicant for fill and removal of material at locations not more than one mile apart shall combine them into one application. Applicants for linear transportation or utility corridor projects shall apply on a single application if the projects:

(a) Consist of integrally-related activities; and

(b) Are planned, phased, designed and budgeted as a discrete construction unit.

(9) The Department may require additional information necessary to make an informed decision on whether or not the application and project complies with these rules and ORS 196.800 to 196.990.

(10) A complete application shall include the fee as described in OAR 141-085-0064.

Stat. Auth.: ORS 196.815, 196.825, 196.830
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 2-2003(Temp) f. & cert. ef. 11-26-03 thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0027

Determination of Complete Application for Individual Removal-Fill Permit

(1) Within 30 days of Department's receipt of an application, the Department shall finish the completeness initial review and provide written results of the review to the applicant. The Department shall review the application materials to determine whether all the forms, plans, maps and other information required in OAR 141-085-0025 are present. During the review, the Department will determine:

(a) If the project, as described in the complete application, is exempt from these rules as described in OAR 141-085-0015 or 141-085-0020. If the Department determines that the application is for an activity that is not subject to these rules, it shall notify the applicant in writing and state the reasons for the determination. If there is insufficient information to make this determination, the Department will provide a list of the information deficiencies to the applicant as part of the results of the initial completeness review.

(b) If the project, as described in the application, is eligible for approval under the General Authorization (GA) as described in OAR 141-089. If the project is eligible for a GA, the Department will continue to process the application as a General Authorization.

(c) If the application is complete in accordance with OAR 141-085-0025.

(d) If the application is incomplete.

(2) If the Department fails to make the completeness determination within the 30 (thirty) calendar day time period and fails to so notify the applicant, the application shall be deemed a complete application and shall proceed to the public review process as described in OAR 141-085-0028.

(3) The Department will accept a preliminary wetland delineation or preliminary wetland determination report along with the application in accordance with OAR 141-085-0025(5). A jurisdictional determination in accordance with OAR 141-090 will be completed prior to or at the time of the permit decision. The Department shall not deem an application incomplete because it lacks a Department-approved wetland delineation or wetland determination report.

(4) When the Department deems the application complete, the Department shall process the application in accordance with OAR 141-085-0028(6).

(5) If the Department determines that the application does not meet the requirements of OAR 141-085-0025 and is therefore deficient and incomplete, the Department shall, within a reasonable time, but no later than thirty (30) days after the initial receipt of the application, notify the applicant in writing and list the missing information. The Department will take no action on the incomplete application until the required information is resubmitted. The applicant must resubmit the entire amended package for reconsideration, unless instructed by the Department to do otherwise. Submission of a new application package starts a new 30-day completeness review period. Examples of information that may be cause for rejection of the application include, but are not limited to, the following:

(a) Major errors, omissions or inconsistencies in the application;

(b) Major errors, omissions or inconsistencies in the wetland delineation or determination report, if one is required;

(c) Lack of a wetland delineation or wetland determination where wetlands are affected by the project;

(d) Unclear, illegible maps and drawings;

(e) Lack of a compensatory wetland mitigation plan;

(f) Lack of an analysis of the adverse effects of the project on the water resources or the navigation, fishing and public recreation uses; or

(g) Lack of payment of fees.

(6) Minor errors, omissions or inconsistencies, as determined by the Department, will not be cause for rejection.

Stat. Auth.: ORS 196.815, 196.825 & 196.845
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 6-2002, f. 11-25-02 cert. ef. 1-15-03; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 1-2006, f. 3-21-06, cert. ef. 3-27-06

141-085-0028

Individual Removal-Fill Permit Review Process Including the Public Review and Notice Process

(1) General Description. The Department shall make a permit decision within ninety (90) calendar days after determining that the application is complete and the fee has been received. Within the ninety (90) day time period, the Department will do one of the following:

(a) Approve the application and issue an individual removal-fill permit with conditions; or

(b) Approve the application with modifications and issue an individual removal-fill permit with special conditions; or

(c) Request of the applicant an extension of the permit decision deadline to a time certain. No extension shall be made without the applicant's written approval; or

(d) If the project is inconsistent with these rules (e.g. OAR 141-085-0029), deny the application; or

(e) Determine the project is an exempt activity or is otherwise not within the jurisdiction of these rules as described in OAR 141-085-0015 or 141-085-0020; or

(f) Determine that the project is eligible for approval under a general authorization as described in OAR 141-089 and process the application in accordance with the applicable general authorization, if requested to do so by the applicant.

(2) If the Department determines that the project is not subject to these rules, it shall notify the applicant, in writing, and state the reasons for the determination.

(3) In the event that the applicant and the Department agree to postpone and extend the removal-fill permit issuance decision, the applicant and the Department shall agree on a new permit decision deadline. The new schedule must be in writing and agreed upon before the expiration of the ninety (90) day period described in OAR 141-085-0028(1). If no agreement is reached, the Department shall take any action described in OAR 141-085-0028(1)(a)(b) or (d) deemed appropriate.

(4) Modifications to permit applications may be accepted by the Department at any time prior to the permit decision. If the modification is determined by the Department to be substantially different in nature or effect from the original application (e.g. large increase in area of development, or large increase of volume of fill/removal), the Department shall treat the modified application as a new application and process it in accordance with these rules. The Department shall make a decision on the treatment of the modified application based on the information provided by the applicant, within the ninety (90) day time requirement established in OAR 141-085-0028(1). Itis a normal and acceptable practice to modify an application in order to address concerns and comments offered during the public review process or at the applicant's own initiative. The Department will give consideration to this fact as it determines whether or not to treat the modified application as a new application. (continued)