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(continued)
(6) When previously unknown occurrences of archeological sites are discovered during construction, the authorization holder shall immediately cease work at the discovery site and contact the Department.
(7) The authorization holder shall ensure that the authorized work does not unreasonably interfere with or create a hazard to recreational navigation.
(8) The authorization holder shall ensure that woody vegetation removal is limited to the minimum amount needed to complete the project including construction access and keying in of structures.
(9) The authorization holder shall ensure that areas disturbed in the course of completing the authorized work are revegetated with the same mix of native herbs, shrubs and/or trees in approximately the same numeric proportion as were removed from the site, unless otherwise approved by the Department, except that grass seed mixes of exotics certified free of noxious weeds that will hold the soil and not persist are permitted.
(10) The authorization holder shall ensure that no petroleum products, chemicals or deleterious materials are allowed to enter the waters of the state.
(11) The authorized work shall not cause turbidity of affected waters to exceed natural background turbidity by more than 10 percent, as measured 100 feet downstream from the work area.
(a) If all appropriate erosion/turbidity control measures, as described in the ODEQ Erosion and Sediment Control Manual (April 2005), are in place and functioning properly then this standard may be exceeded, in each 24-hour period, for only:
(A) One 2-hour period in fast moving water (>2% stream bed gradient).
(B) One 4-hour period in slow moving water (<2% stream bed gradient).
(b) Turbidity shall be monitored at least 100 feet up stream of the current work area to obtain a natural background level and 100 feet down stream of the current work area, in the visible plume if one is present, unless otherwise approved by DSL after consulting with DEQ. A turbidimeter is recommended for measuring; however, visual observation is acceptable. If a turbidimeter is not used, turbidity that is visible over background at a distance of 100 feet down stream of the current work area is a violation of the permit conditions.
(c) Monitoring of turbidity shall take place during daylight hours each day of in-water work and every 2 hours in fast moving waters and every 4 hours in slow moving waters as described above in (a). A written record of turbidity monitoring shall be kept.
(d) If the levels of turbidity are elevated at the time of the first compliance-monitoring interval, all practicable erosion control measures should be implemented to reduce the levels of turbidity. If the levels of turbidity are in exceedance during the second monitoring interval, the activity causing the elevated levels of turbidity must cease until the levels of turbidity return to background.
(12) The authorization holder shall ensure that all applicable Department of Environmental Quality water quality requirements are adhered to and permits and certifications are obtained prior to commencing construction activities.
(13) If a 401 Water Quality Certification (WQC) is issued by DEQ in conjunction with a US Army Corps of Engineers 404 permit for the same project, the turbidity condition in the 401 WQC will replace the above listed turbidity language (a copy of the 401 Water Quality Certification shall be retained on site).
(14) The authorization holder shall not remove and/or dispose of sediments in violation of the applicable state water quality standards.
(15) The authorization holder shall keep a copy of the letter of authorization available at the work site whenever the activity is being conducted.
(16) Employees of the Department and all duly authorized representatives shall be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this authorization.
(17) The Department makes no representation regarding the quality or adequacy of the project design, materials, construction, or maintenance, except to approve the project's design and materials as satisfying the resource protection, scenic, safety, recreation, and public access requirements of ORS Chapters 196 and related administrative rules.
(18) The State of Oregon, and its officers, agents, and employees shall be held harmless from any claim, suit, or action for property damage or personal injury or death arising out of the design, material, construction, or maintenance of the permitted improvements.
(19) The Department may add other project-specific conditions to the letter of authorization as necessary to meet the requirements of the general authorization. Such additional conditions may be needed to ensure that the project will cause only minimal individual and cumulative environmental impacts and will not result in long term harm to water resources of the state.
(20) The Department may, at any time, by notice to affected authorization holders revoke or modify any letter of authorization granted under this general authorization if it determines the conditions of the general authorization are insufficient to minimize individual or cumulative environmental impacts.
(21) The authorization holder is responsible for the activities of all contractors or other operators involved in project work covered by the letter of authorization.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 1-2003, f. & cert. ef. 7-10-03; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0525
Violation of General Authorization; Enforcement
Violations of the terms and conditions of this general authorization are subject to administrative and/or legal action, which may result in revocation of the authorization. The authorization holder is responsible for the activities of all contractors or other operators involved in work done at the site or under the authorization.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 1-2003, f. & cert. ef. 7-10-03
141-089-0530
Appeals; Expiration; Review of General Authorization
(1) An applicant whose application for the general authorization is determined by the Department to be ineligible or otherwise not qualified for this general authorization may obtain an informal review of the Department's decision through the alternative dispute resolution process resolution process described in OAR 141-085-0075. However, this is only opportunity to review the Department's decision and does not give the person a right to a contested case hearing.
(2) This general authorization shall be reviewed by the Department on or before January 1, 2011, at which time it shall be reviewed in accordance with the provisions of ORS 196.850(5), and modified, reissued or rescinded. The review will include public notice and opportunity for public hearing. An approval issued prior to expiration of this General Authorization shall remain in effect until January 1, 2012.
(3) Any activities authorized by a letter of authorization issued prior to January 1, 2006 are authorized until the activity is completed or until January 1, 2012, whichever comes first. All conditions of issuance continue to be in force. Activities authorized by this General Authorization that are not completed by January 1, 2012, shall require the submittal of a new application in order to complete the proposed activities. However, a one time 90 day extension will be allowed by the Department, if the applicant provides the Department with a written Notice that states that the activities authorized by this General Authorization will be completed within 90 days of January 1, 2012. The Department shall acknowledge and approve in writing the one time 90 day extension.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990
Hist.: DSL 1-2003, f. & cert. ef. 7-10-03; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
General Authorization for Oregon Department of Transportation Bridge Replacement and Repair Projects
141-089-0550
Purpose and Applicability
(1) This rule sets forth conditions under which the Oregon Department of Transportation (ODOT) may, with a letter of authorization from the Director, place or remove material from waters of the state for the purposes of replacing and repairing highway bridges. This rule is put forth to promote a bridge replacement program that is heavily influenced by sustainable development practices. A goal of the performance standards under this rule is to guide the design and construction of environmentally sound bridges that improve the condition and performance of natural systems.
(2) A letter of authorization from the Department verifying compliance with this general authorization is required prior to any person commencing an activity authorized by this general authorization. The terms and conditions of issuance shall be stated in the letter of authorization. A letter of authorization is transferable from ODOT to another person in accordance with OAR 141-085-0034.
(3) This general authorization is made pursuant to ORS 196.850 and is based upon the determination that the authorized activities are similar in nature and when conducted in accordance with this general authorization rule will not result in long-term harm to water resources of the state, and will cause only minimal individual and cumulative environmental impacts.
(4) This general authorization does not apply to activities or waters exempt from the removal-fill law as described in OAR 141-085-0020.
(5) Unless otherwise specified below, the terms used in this general authorization are defined in OAR 141-085-0010.
(6) Bridge replacement and repair activities that qualify for this General Authorization are exempt from removal-fill permit fees as described in OAR 141-085-0064.
(7) In the event a dispute arises as to the applicability of this general authorization to any project application, the Department shall make the final determination. The Department shall rely upon the applicant's project application and supporting documentation for its decision.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04
141-089-0555
Eligibility Requirements; Ineligible Projects
(1) In order to issue a letter of authorization, the Department shall determine that the project is eligible and meets the applicable mandatory requirements as described in this rule. To be eligible a project must be a bridge replacement or repair and shall be limited to the following purposes:
(a) Widening shoulder for new roadside embankment, curbs, trails, sidewalks and rail crossings;
(b) Widening road for additional passing lanes, turn lanes and refuges and travel lanes;
(c) Widening, replacing, realigning or removing existing railroad beds;
(d) Widening, replacing, realigning or removing existing roads;
(e) Widening, replacing, realigning, removing or replacing existing bridges or similar structures;
(f) Widening, replacing, realigning or removing existing bicycle, pedestrian or other lanes or trails;
(g) Constructing new bicycle, pedestrian or other lanes or trails;
(h) Replacement of culverts or similar water conveyance structures along roads and trails that extend beyond the existing road prism;
(i) Construction of new culverts;
(j) Extension of existing culverts beyond the existing road prism;
(k) Streambank stabilization associated with projects listed in (a) through (j);
(l) Hydraulic scour protection associated with bridges and similar structures including but not limited to: construction of a new trench and stone embankment; construction of new bridge footings; placing new riprap to stabilize a transportation structure foundation;
(m) Temporary structures;
(n) Staging areas for equipment that will be restored at time of project completion;
(o) Test holes, boring and similar activities associated with planning and design of transportation structures; and
(p) Other activities that within the discretion of the Department are determined to be necessary to:
(A) Provide fish passage;
(B) Ensure the structural integrity of the project; or
(C) Relocate utilities spanning the original bridge structure or similar activities that are integrally related to accomplishing the bridge repair or replacement.
(2) A project is not eligible for this general authorization if:
(a) The project is not primarily a bridge replacement or repair;
(b) The project fails to meet any of the requirements of (1) above or the mandatory requirements;
(c) The project includes any structure, use or activity subject to another general authorization under OAR 141-089 or individual removal-fill permit under OAR 141-085, unless it is incidental to the project or is necessary to provide compensatory mitigation, compensatory wetland mitigation, fish passage or for the structural integrity of the project.
(3) Permanent fill in wetland is limited to 0.5 acres or less. In waters other than wetlands, no more than a total of five thousand (5,000) cubic yards of material may be filled, removed or altered in waters of the state for a single and complete project. Exceeding five thousand (5,000) cubic yards is authorized only where necessary to improve or restore fluvial processes on a project specific basis.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0560
Mandatory Requirements
(1) The applicant must be ODOT or a party approved by ODOT to be qualified as an applicant as defined in OAR 141-085-0010(3).
(2) If the activity is within a State Scenic Waterway, a scenic waterway removal-fill permit must have been obtained from the Department in accordance with OAR 141-100.
(3) A compensatory mitigation plan or compensatory wetland mitigation plan is required pursuant to OAR 141-085-0115 to 141-085-0176 to mitigate for any reasonably expected adverse impacts to water resources of the state or navigation, fishing and public recreation uses.
(a) Prior to initiating construction, ODOT shall provide a project notification form that documents how compensatory wetland mitigation or compensatory mitigation for waters other than wetlands is to be achieved for the individual project;
(b) ODOT shall develop and implement a comprehensive compensatory mitigation site monitoring, reporting, and corrective action program as approved by the Department.
(4) Prior to expiration of this General Authorization, ODOT shall calculate total acres of permanent wetland impact for those projects authorized under this rule and determine if the functional attributes of the compensatory wetland mitigation has compensated for functions lost through project development in accordance with OAR 141-085-0136. If a deficit exists, the balance shall be achieved through additional on-site or off-site mitigation including payment-to-provide options in accordance with OAR 141-085-0131.
(5) If wetlands may be affected by the proposed activity, a previously-approved, unexpired wetland delineation report, less than five (5) years old that meets the requirements OAR 141-090-0005 to 0055, is required for a complete application. If the project and mitigation site, if different do not have a previously approved, unexpired wetland delineation report, a delineation report must be submitted to the Department at least 120 days
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0565
Application Requirements; Review Process
(1) To qualify for a General Authorization under this rule, ODOT shall, before beginning construction, submit to the Department an application, on a form provided by the Division that includes the following information:
(a) Location of project;
(b) Map of project area with removal-fill impact area clearly identified;
(c) Dates of expected work;
(d) References to documents previously reviewed and approved by the Department (e.g., environmental assessments);
(e) Project design information, including plan and section view of proposed new structures;
(f) Locations of temporary access areas, staging areas, and other areas of disturbance;
(g) Wetland delineation concurrence letter, if applicable;
(h) Location of ordinary high water, if applicable;
(i) Jurisdictional impact acreage and volume (in cubic yards) of removal and/or fill;
(k) List of ODOT performance standards applicable to the project;
(l) Documentation demonstrating how and when compensatory mitigation will be achieved;
(m) Documentation demonstrating how project complies with applicable ODOT Performance Standards, and any other relevant information requested by the Department.
(n) Documentation of local government land use approval; and
(o) Documentation of coordination with adjacent property owners, Tribal governments (as applicable) and state and federal natural resource agencies.
(2) Within fifteen (15) calendar days of receipt of a completed application, the Division will review the application for compliance with the conditions in OAR 141-089-0570 of these rules and notify ODOT whether the project is eligible, eligible with new or modified conditions, or ineligible. The Department will not continue to process an incomplete application. To re-initiate the application review process the applicant may submit an amended application at any time within twelve (12) months of the original application date. The applicant must resubmit an entire amended application for reconsideration, unless instructed by the Department to do otherwise. Submission of an amended application commences a new review period.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0570
Conditions of Issuance of General Authorization
ODOT shall adhere to the conditions of the General Authorization.
(1) ODOT shall conduct all work in compliance with the comprehensive plan, zoning requirements or other local, state, or federal regulations pertaining to the project. Local land use planning department approval shall be obtained if the project is located within a Federal Emergency Management Agency designated floodway. All other necessary approvals and permits shall be obtained before commencing with the authorized project.
(2) ODOT shall obtain all necessary access permits or rights-of-way prior to entering lands owned by another for the purposes of construction activities for a project authorized under this general authorization.
(3) ODOT shall conduct the activity during the time period recommended by the Oregon Department of Fish and Wildlife, unless after consultation with ODFW, a waiver is granted by the Department for a longer or alternative time period.
(4) When listed species are present, ODOT shall comply with the state and Federal Endangered Species Acts. If previously unknown listed species are encountered during the project, ODOT shall contact the Department as soon as possible.
(5) ODOT shall not disturb or destroy known archeological sites unless authorized under a permit issued by the State Historic Preservation Office. When previously unknown occurrences of archeological sites are discovered during construction, ODOT shall immediately cease work at the discovery site and contact the Department.
(6) ODOT shall ensure that the authorized work does not unreasonably interfere with or create a hazard to recreational navigation.
(7) ODOT shall implement and comply with all relevant ODOT Bridge Program Performance Standards.
(8) ODOT shall flag the boundaries of clearing limits associated with site access and construction to prevent ground disturbance of critical riparian vegetation, wetlands and other sensitive sites beyond the flagged boundary.
(9) ODOT shall prepare and carry out a site restoration plan as necessary to ensure that all habitats (e.g., streambanks, soils and vegetation) disturbed by the project are cleaned up and restored. Site restoration shall be conducted using a diverse assemblage of species native to the project area or region, including grasses, forbs, shrubs and trees as appropriate. Grass and forb seed mixes containing exotic species are permitted, if they will hold the soil, not persist, and are certified to be free of noxious weeds.
(10) ODOT shall locate vehicle staging, cleaning, maintenance, refueling, and fuel storage facilities (a) in areas that have been previously compacted, disturbed, and cleared (if available) and (b) in areas where delivery of contaminants to the soil and waters can be prevented, contained, and cleaned rapidly.
(11) ODOT shall assure that the work will not cause turbidity of affected waters to exceed 10% of natural background turbidity 100 feet downstream of the fill point. For projects proposed in areas with no discernible gradient break (gradient <2%), monitoring shall take place at 4 hour intervals and the turbidity standard may be exceeded for a maximum of one monitoring interval per 24 hour work period provided all practicable control measures have been implemented. This standard applies only to coastal lowlands and floodplains, valley bottoms and other low-lying and/or relatively flat land. For projects in hilly or mountainous areas, the turbidity standard can only be exceeded for a maximum of 2 hours (limited duration) provided all practicable erosion control measures have been implemented. These projects will also be subject to additional reporting requirements. Turbidity shall be monitored during active in-water work periods. Monitoring points shall be 100 feet upstream from the fill point at an undisturbed site (background), 100 feet downstream, from the fill point and at the point of fill. A turbidimeter is recommended, however, visual gauging is acceptable. Turbidity that is visible over background is considered an exceedance of the standard.
(12) The authorization holder shall ensure that all applicable Department of Environmental Quality water quality requirements are adhered to and permits and certifications are obtained prior to commencing construction activities.
(13) ODOT shall eliminate direct discharge of stormwater from bridge decks to waters.
(14) ODOT shall prepare and carry out a pollution and erosion control plan to prevent pollution caused by surveying or construction operations. The pollution and erosion control plan will meet requirements of all applicable laws and regulations.
(15) ODOT shall ensure that other structures, uses or activities not associated with the application for the proposed project (i.e., vehicle maintenance, construction of storage buildings, parking lots) are not permitted.
(16) ODOT shall comply with the following bank stabilization guidelines:
(a) Unless precluded by flow conditions, channel and bank stabilization efforts should use a vegetative stabilization approach such as one of the following methods:
(A) Woody plantings and variations (e.g., live stakes, brush layering, facines, brush mattresses), where appropriate.
(B) Herbaceous cover, where analysis of available records (e.g., historical accounts and photographs) shows that trees or shrubs did not exist on the site within historic times.
(C) Deformable soil reinforcement, consisting of soil layers or lifts strengthened with fabric and vegetation that are mobile ('deformable') at approximately two- to five-year recurrence flows.
(D) Coir logs (long bundles of coconut fiber), straw bales and straw logs used individually or in stacks to trap sediment and provide growth medium for riparian plants.
(E) Bank reshaping and slope grading, when used to reduce a bank slope angle without changing the location of its toe, increase roughness and cross-section, and provide more favorable planting surfaces.
(F) Floodplain roughness, e.g., floodplain tree and large woody debris rows, live siltation fences, brush traverses, brush rows and live brush sills; used to reduce the likelihood of avulsion in areas where natural floodplain roughness is poorly developed or has been removed.
(G) Floodplain flow spreaders, consisting of one or more rows of trees and accumulated debris used to spread flow across the floodplain.
(b) Flow-redirection structures known as barbs, vanes, or bendway weirs may be used for bank stabilization, when designed as follows or otherwise approved in writing by DSL:
(A) No part of the flow-redirection structure may exceed bank full elevation, including all rock buried in the bank key.
(B) The flow-redirection structure shall be composed primarily of wood or otherwise shall incorporate large wood at a suitable elevation in an exposed portion of the structure or the bank key. Placing the large woody debris near streambanks in the depositional area between flow direction structures to satisfy this requirement is not approved, unless those areas are likely to be greater than 1 meter in depth, sufficient for salmon rearing habitats.
(C) The trench excavated for the bank key above bankfull elevation shall be filled with soil and topped with native vegetation.
(D) The maximum flow-redirection structure length shall not exceed 1/4 of the bankfull channel width.
(E) Rock shall be placed individually, without end dumping.
(F) If two or more flow-redirection structures are built in a series, the flow-redirection structure farthest upstream shall be placed within 150 feet or 2.5 bankfull channel widths, from the flow-redirection structure farthest downstream.
(G) Woody riparian plantings shall be included as a project component where appropriate.
(c) When used for bank stabilization, rock will be class 350 metric, or larger, wherever feasible, but may not impair natural stream flows into or out of secondary channels or riparian wetlands. Whenever feasible, topsoil shall be placed over the rock and planted with woody vegetation. Rock may be used instead of wood for the following purposes and structures:
(A) As ballast to anchor or stabilize large woody debris components of an approved bank treatment.
(B) To fill scour holes, as necessary to protect the integrity of the project, if the rock is limited to the depth of the scour hole and does not extend above the channel bed.
(C) To construct a footing, facing, head wall, or other protection necessary to prevent scouring or downcutting of, or fill slope erosion or failure at, an existing flow control structure (e.g., a culvert, water intake), utility line, or bridge support.
(D) To construct a flow-redirection structure as described above.
(d) If flow conditions require the use of riprap to achieve bank stabilization, adequate fines and substrate materials must be incorporated to sustain the growth and survival of native herbaceous vegetation and shrubs.
(17) In the case of road removal, ODOT shall ensure that all affected stream and bank areas are restored to their approximate original contour.
(18) If temporary roads are required through wetlands, ODOT shall install culverts to maintain connectivity between wetland areas.
(19) Employees of the Department and all duly authorized representatives shall be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this authorization.
(20) The Department makes no representation regarding the quality or adequacy of the project design, materials, construction, or maintenance, except to approve the project's design and materials as satisfying the resource protection, scenic, safety, recreation, and public access requirements of ORS Chapters 196 and related administrative rules.
(21) The State of Oregon, and its officers, agents, and employees shall be held harmless from any claim, suit, or action for property damage or personal injury or death arising out of the design, material, construction, or maintenance of the permitted improvements.
(22) The Department may add other project-specific conditions to the letter of authorization as necessary to meet the requirements of the general authorization. Such additional conditions may be needed to ensure that the project will cause only minimal individual and cumulative environmental impacts and will not result in long-term harm to water resources of the state.
(23) The Division may, at any time, by notice to ODOT revoke or modify any project approval granted under this General Authorization if it determines the conditions of the General Authorization are insufficient to minimize individual or cumulative environmental impacts.
(24) ODOT is responsible for the activities of all contractors or other operators involved in project work covered by the letter of authorization.
(25) ODOT shall keep a copy of all relevant permits and approvals available at the work site whenever the activity is being conducted.
(26) The General Authorization applies only to the permit requirements of the Removal-Fill Law. Any activity on designated State Scenic Waterways must still obtain prior approval from the Director as required by the Oregon Scenic Waterway Law and Scenic Waterway Removal-Fill Rules (OAR 141-100).
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0575
Violation of General Authorization; Enforcement
Violations of the terms and conditions of any general authorization are subject to administrative and/or legal action that may result in revocation of the authorization. ODOT is responsible for the activities of all contractors or other operators involved in work done at the site or under the authorization.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04
141-089-0580
Appeals; Expiration; Review of General Authorization
(1) An applicant whose application for the general authorization is determined by the Department to be ineligible or otherwise not qualified for this general authorization may obtain an informal review of the Department's decision through the alternative dispute resolution process resolution process described in OAR 141-085-0075. However, this is only opportunity to review the Department's decision and does not give the person a right to a contested case hearing.
(2) This general authorization shall be reviewed by the Department on or before January 1, 2011, at which time it shall be modified, reissued or rescinded. The review will include public notice and opportunity for public informational hearing. An approval issued prior to expiration of this General Authorization shall remain in effect until January 1, 2012.
(3) Any activities authorized by a letter of authorization issued prior to January 1, 2006 are authorized until the activity is completed or until January 1, 2012, whichever comes first. All conditions of issuance continue to be in force. Activities authorized by this General Authorization that are not completed by January 1, 2012, shall require the submittal of a new application in order to complete the proposed activities. However, a one time 90 day extension will be allowed by the Department, if the applicant provides the Department with a written Notice that states that the activities authorized by this General Authorization will be completed within 90 days of January 1, 2012. The Department shall acknowledge and approve in writing the one time 90 day extension.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
General Authorization for Minor Impacts to Freshwater Wetlands located within Urban Growth Boundaries or Urban Unincorporated Communities
141-089-0585
Purpose and Applicability
(1) This rule sets forth conditions under which an applicant may, without obtaining an individual removal-fill permit, place or remove material from certain freshwater wetlands within waters of the state (as described in OAR 141-085-0016), for all types of activities within designated Urban Growth Boundaries (UGB) or Urban Unincorporated Communities (UUC).
(2) A letter of authorization from the Department is required prior to any person commencing an activity authorized by this general authorization. The term and conditions of issuance shall be stated in the letter of authorization. The term shall not exceed the expiration date of this general authorization. A letter of authorization is transferable to another person in accordance with OAR 141-085-0034.
(3) This general authorization is made pursuant to ORS 196.850 and is based upon the determination that the authorized activities are similar in nature and when conducted in accordance with this general authorization rule will not result in long term harm to water resources of the state, and will cause only minimal individual and cumulative environmental impacts.
(4) This general authorization does not apply to activities or waters exempt from the removal-fill law as described in OAR 141-085-0015 and 141-085-0020.
(5) Other structures, uses or activities included in any application for this general authorization that are subject to another general authorization under OAR 141-089 or individual permit under OAR 141-085 will not be authorized or covered by this general authorization. An application encompassing multiple activities must obtain an individual removal-fill permit under OAR 141-085.
(6) Unless otherwise specified, the terms used in this general authorization are defined in OAR 141-085-0010.
(7) Activities and/or projects, which qualify for this general authorization, are exempt from removal-fill permit fees as described in OAR 141-085-0064.
(8) In the event a dispute arises as to the applicability of this general authorization to any project application, the Department shall make the final determination. The Department shall rely upon the applicant's project application and supporting documentation for its decision.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04
141-089-0590
Eligibility Requirements; Ineligible Projects
(1) In order to issue a letter of authorization the Department shall determine that the project is eligible and meets the applicable Mandatory Requirements as described in this rule. To be eligible a project must be for a removal-fill activity that:
(a) Is located in a freshwater wetland;
(b) The removal-fill is less than 0.1 (one-tenth) acre;
(c) Is within a designated Urban Growth Boundary (UGB) or Urban Unincorporated Community (UUC);
(d) Is not within an area that contains state or federal listed species;
(e) Is not in an area designated in the local comprehensive land use plan as a locally significant wetland;
(f) Is beyond the floodway or flood fringe area as designated on maps approved by the Federal Emergency Management Agency; and
(g) Is not located adjacent to an estuary or to designated Essential Indigenous Anadromous Salmon Habitat.
(2) A project is not eligible for this general authorization if:
(a) The project fails to meet any of the requirements of (1) above or the mandatory requirements;
(b) The project includes any structure, use or activity subject to another general authorization under OAR 141-089 or individual removal-fill permit under OAR 141-085, unless it is incidental to the project or is necessary to provide fish passage or for the structural integrity of the project.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04
141-089-0595
Mandatory Requirements
The Department shall review each application to ensure that a project complies with the following mandatory standards:
(1) If the project is within a State Scenic Waterway, a scenic waterway removal-fill permit must have been obtained from the Department in accordance with OAR 141-100.
(2) A wetland delineation report has been approved by the Department in accordance with OAR 141-090-0040.
(3) A compensatory wetland mitigation plan is required pursuant to OAR 141-085 to mitigate for any reasonably expected adverse impacts to water resources of the state or navigation, fishing and public recreation uses. Applicants for projects involving wetland impacts to areas less than 0.1 (one-tenth) acre may use off-site compensatory wetland mitigation.
(4) If wetlands may be affected by the proposed activity, a previously approved, unexpired wetland delineation report, less than five (5) years old, that meets the requirements in OAR 141-090-0005 to 0055, is required for a complete application. If the project and mitigation site, if different do not have a previously approved, unexpired wetland delineation report, a delineation report must be submitted to the Department at least 120 days in advance of the anticipated GA application submittal.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0600
Application Requirements; Public Notice; Review Process
(1) An application for a general authorization under this rule shall be submitted on an application form available from the Department. A complete application is one that contains all the information required in the application packet provided by the Department.
(2) The Department shall notify the applicant within fifteen (15) calendar days of receipt of the application if the application is incomplete or ineligible; otherwise the application will be considered complete. If the application is deemed incomplete, the Department shall notify the applicant and identify the missing, inaccurate or insufficient information. The Department will not continue to process an incomplete application. To re-initiate the application review process the applicant may submit an amended application at any time within twelve (12) months of the original application date. The applicant must resubmit an entire amended application for reconsideration, unless instructed by the Department to do otherwise. Submission of an amended application commences a new review period.
(3) Once the application is deemed complete, the Department shall provide notice of the application to the adjacent property owners, the local planning department, the local Soil and Water Conservation District, the Oregon Department of Fish and Wildlife, the Oregon Department of Environmental Quality, the Oregon Department of Land Conservation and Development, affected Tribal government, the State Historic Preservation Office, the Oregon Water Resources Department, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service and National Marine Fisheries Service. Diking and drainage districts shall also be notified as applicable. If the project is on a federally designated Wild and Scenic River, the Department shall provide notice to the appropriate U.S. Forest Service or Bureau of Land Management office.
(4) The Department shall consider comments received with fifteen (15) calendar days of the notice date. In the event a party fails to comment within the (15) calendar day period, the Department shall assume the party has no objection to the application.
(5) The Department may waive or shorten the comment period described in (4) above upon a showing by the applicant in the application that the interested parties listed in (3) have previously reviewed and approved the project.
(6) Following comment period and not more than forty (40) calendar days from the receipt of an application, the Department will determine if the project meets the eligibility requirements set out in this general authorization and do one of the following:
(a) Approve the application and issue a letter of authorization to the applicant;
(b) Approve the application and issue a letter of authorization, with project specific conditions, to the applicant; or
(c) Deny the application and notify the applicant. If the Department determines that the proposed project is ineligible or otherwise does not qualify for the general authorization the applicant may submit the project for processing and review as an application for an individual removal-fill permit, as provided in OAR 141-085.
(7) The Department may require an individual removal-fill permit for projects that would otherwise be authorized by this general authorization, if the Department determines that the activity might cause more than minimal individual or cumulative environmental impacts or might result in long-term harm to the water resources of the state. The Department may also require an individual removal-fill permit if requested to do so by the Oregon Department of Fish and Wildlife, the Oregon Department of Environmental Quality or the affected local land use planning department.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0605
Conditions of Issuance of General Authorization
All holders of a letter of authorization (authorization holder) shall adhere to the conditions of the general authorization.
(1) The authorization holder shall conduct all work in compliance with the comprehensive plan, zoning requirements or other local, state, or federal regulations pertaining to the project. Local land use planning department approval shall be obtained if the project is located within a Federal Emergency Management Agency designated floodway. All other necessary approvals and permits shall be obtained before commencing with the authorized project. All necessary approvals and permits shall be obtained before commencing the project under this general authorization.
(2) The authorization holder shall obtain all necessary access permits or rights-of-way prior to entering lands owned by another for the purposes of completing a project authorized under this general authorization.
(3) The authorization holder shall conduct the activity during the time period recommended by the Oregon Department of Fish and Wildlife, unless after consultation with ODFW, a waiver is granted by Department for a longer or alternative time period.
(4) The authorization holder shall ensure that the activity will not interfere with fish passage, as required by the Oregon Department of Fish and Wildlife.
(5) If previously unknown state or federal listed species are encountered during the project, the authorization holder shall cease work immediately and contact the Department as soon as possible.
(6) The authorization holder shall not disturb or destroy known archeological sites unless authorized under a permit issued by the State Historic Preservation Office. When previously unknown occurrences of archeological sites are discovered during construction, the authorization holder shall immediately cease work at the discovery site and contact the Department.
(7) The authorization holder shall ensure that woody vegetation removal is limited to the minimum amount needed to complete the project including construction access and keying in of structures.
(8) The authorization holder shall ensure that areas disturbed in the course of completing the authorized work are revegetated with the same mix of native herbs, shrubs and/or trees in approximately the same numeric proportion as were removed from the site, unless otherwise approved by the Department, except that grass seed mixes of exotics certified free of noxious weeds that will hold the soil and not persist are permitted.
(9) The authorization holder shall ensure that no petroleum products, chemicals or deleterious materials are allowed to enter the waters of the state.
(10) The authorized work shall not cause turbidity of affected waters to exceed natural background turbidity by more than 10 percent, as measured 100 feet downstream from the work area.
(a) If all appropriate erosion/turbidity control measures, as described in the ODEQ Erosion and Sediment Control Manual (April 2005), are in place and functioning properly then this standard may be exceeded, in each 24-hour period, for only:
(A) One 2-hour period in fast moving water (>2% stream bed gradient).
(B) One 4-hour period in slow moving water (<2% stream bed gradient).
(b) Turbidity shall be monitored at least 100 feet up stream of the current work area to obtain a natural background level and 100 feet down stream of the current work area, in the visible plume if one is present, unless otherwise approved by DSL after consulting with DEQ. A turbidimeter is recommended for measuring; however, visual observation is acceptable. If a turbidimeter is not used, turbidity that is visible over background at a distance of 100 feet down stream of the current work area is a violation of the permit conditions.
(c) Monitoring of turbidity shall take place during daylight hours each day of in-water work and every 2 hours in fast moving waters and every 4 hours in slow moving waters as described above in (a). A written record of turbidity monitoring shall be kept.
(d) If the levels of turbidity are elevated at the time of the first compliance-monitoring interval, all practicable erosion control measures should be implemented to reduce the levels of turbidity. If the levels of turbidity are in exceedance during the second monitoring interval, the activity causing the elevated levels of turbidity must cease until the levels of turbidity return to background.
(12) The authorization holder shall ensure that all applicable Department of Environmental Quality water quality requirements are adhered to and permits and certifications are obtained prior to commencing construction activities.
(13) If a 401 Water Quality Certification (WQC) is issued by DEQ in conjunction with a US Army Corps of Engineers 404 permit for the same project, the turbidity condition in the 401 WQC will replace the above listed turbidity language (a copy of the 401 Water Quality Certification shall be retained on site).
(14) The authorization holder shall ensure that all structures are constructed using equipment operating outside the waterway or wetland unless otherwise approved by the Department as a part of the project plan.
(15) The authorization holder shall keep a copy of the letter of authorization available at the work site whenever the activity is being conducted.
(16) Employees of the Department and all duly authorized representatives shall be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this authorization.
(17) The Department makes no representation regarding the quality or adequacy of the project design, materials, construction, or maintenance, except to approve the project's design and materials as satisfying the resource protection, scenic, safety, recreation, and public access requirements of ORS Chapters 196 and related administrative rules.
(18) The State of Oregon, and its officers, agents, and employees shall be held harmless from any claim, suit, or action for property damage or personal injury or death arising out of the design, material, construction, or maintenance of the permitted improvements.
(19) The Department may add other project-specific conditions to the letter of authorization as necessary to meet the requirements of the general authorization. Such additional conditions may be needed to ensure that the project will cause only minimal individual and cumulative environmental impacts and will not result in long term harm to water resources of the state.
(20) The Department may, at any time, by notice to affected authorization holders revoke or modify any letter of authorization granted under this general authorization if it determines the conditions of the general authorization are insufficient to minimize individual or cumulative environmental impacts.
(21) The authorization holder is responsible for the activities of all contractors or other operators involved in project work covered by the letter of authorization.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04; DSL 5-2005, f. 12-30-05, cert. ef.1-3-06
141-089-0610
Violation of General Authorization; Enforcement
Violations of the terms and conditions of any general authorization are subject to administrative and/or legal action which may result in revocation of the authorization. The authorization holder is responsible for the activities of all contractors or other operators involved in work done at the site or under the authorization.
Stat. Auth.: ORS 196.850
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 1-2004, f. & cert. ef. 5-21-04
141-089-0615
Appeals; Expiration; Review of General Authorization
(1) An applicant whose application for the general authorization is determined by the Department to be ineligible or otherwise not qualified for this general authorization may obtain an informal review of the Department's decision through the alternative dispute resolution process described in OAR 141-085-0075. However, this is only an opportunity to review the Department's decision and does not give the person a right toa contested case hearing. (continued)