Loading (50 kb)...'

State
Oregon Regulations
CHAP 141 DIVISION 90 ADMINISTRATIVE RULES FOR WETLAND DELINEATION REPORT REQUIREMENTS AND FOR JURISDICTIONAL DETERMINATIONS FOR THE PURPOSE OF REGULATING FILL AND REMOVAL WITHIN WATERS OF THE STATE




The Oregon Administrative Rules contain OARs filed through July 14, 2006

DEPARTMENT OF STATE LANDS




DIVISION 90
ADMINISTRATIVE RULES FOR WETLAND DELINEATION REPORT
REQUIREMENTS AND FOR JURISDICTIONAL DETERMINATIONS
FOR THE PURPOSE OF REGULATING FILL AND REMOVAL WITHIN
WATERS OF THE STATE



141-090-0005

Purpose

The purpose of these rules is to establish standards and procedures by which the Department of State Lands makes jurisdictional determinations of wetlands and other waters of the state. These rules also establish minimum standards for wetland determination and delineation reports submitted to the Department for review and the procedures for Department review and approval.

Stat. Auth.: ORS 196.845 & 196.692

Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279

Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0010

Applicability

(1) These rules establish the standards and procedures used by the Department of State Lands to identify waters of this state that are subject to regulation and authorization requirements of the Removal-Fill Law (ORS 196.800 to 196.990).

(2) These rules are supplemental to administrative rules for issuance and enforcement of removal and fill authorizations (OAR 141-085; 141-0102); rules pertaining to wetland conservation plans and local wetlands inventories (OAR 141-086; 141-120); rules pertaining to the identification of significant wetlands (OAR 141-086); rules pertaining to General Authorizations (OAR 141-098); and rules pertaining to Oregon Scenic Waterways (OAR 141-100).

(3) Agencies such as the U.S. Army Corps of Engineers (Corps of Engineers) and the Natural Resources Conservation Service have separate regulatory authority over waters of the United States and separate jurisdictional determination procedures.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0015

Policy

(1) It is the policy of the State of Oregon that the protection, conservation and best use of the water resources of this state are matters of the utmost public concern (ORS 196.805) and that the state use a single definition of wetlands and a single, uniform methodology of delineating wetland boundaries (ORS 196.672).

(2) In accord with these policies the Department shall, to the greatest extent possible:

(a) Provide a clear process for making, modifying or reissuing jurisdictional determinations, including wetland boundary delineations;

(b) Make jurisdictional determinations using the best available science, technical guidance and documents, including the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual;

(c) Use sound professional judgment in interpreting maps, aerial photographs, environmental data and other relevant documents;

(d) Provide jurisdictional determinations that improve the level of regulatory certainty for landowners and developers and that help ensure that fill or removal of material in waters of the state does not occur without a required removal or fill permit; and

(e) Encourage landowners and developers to utilize wetland delineation reports at the earliest stage of site development planning in order to incorporate measures to avoid and minimize impacts to wetlands and other waters and thus prevent unnecessary regulatory delays.

(3) Because wetlands and other waters of the state can be affected over time by both natural changes and human activities, jurisdictional determinations are not valid for an indefinite period of time.

(4) The Director of the Department of State Lands shall designate employees responsible for making jurisdictional determinations as described in these rules.

(5) The Department shall give priority to the review of wetland delineation reports submitted with or in advance (i.e., within 90 (ninety) days) of an authorization application.

(6) Final authority for determining the adequacy of the procedures, methods, application of technical documents, interpretation and analysis of maps and data, and conclusions regarding the identification of waters of the state and jurisdictional determinations rests with the Department (ORS 196.815(1); 196.845).

Stat. Auth.: ORS 196.845 & ORS 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0020

Definitions

For the purpose of these rules:

(1) "Agent" means a business partner, attorney or any individual who is legally authorized to represent the landowner's interests.

(2) "Applicant" means a person who has applied to the Department for a jurisdictional determination and/or a removal or fill authorization.

(3) "Atypical Situation" means a site or situation where the usual methods of making a jurisdictional determination cannot be employed due to human-caused activities or alterations of the "normal circumstances," or natural events, such as a flood, that have recently altered a site.

(4) "Authorization Application" means the written application for an authorization to place fill in or remove material from waters of the state as required by OAR 141-085, 141-089, 141-0100 and 141-0102.

(5) "Basis of Jurisdictional Determination" means a summary statement of the criteria and indicators that support the Department 's jurisdictional determination.

(6) "Change in Circumstances" means a change in site conditions that fundamentally alters the hydrology and/or substrate to the extent that the "normal circumstances" of waters of the state are changed. The change in circumstances may be due to alterations on a site or alterations offsite that affect the site sufficiently to enlarge, reduce, or change the status or geographic extent of a jurisdictional water. A change in circumstances includes, but is not limited to, a dike breach or drainage system failure that restores former hydrologic conditions to a site, placement of fill material, or a water source diversion.

(7) "Consultant" means a private individual or firm whose business is to provide professional services to the public.

(8) "Delineation" means a determination of wetland presence that includes marking the wetland boundaries on the ground and/or on a detailed map prepared by professional land survey or similar accurate methods.

(9) "Determination" means a decision that a site may, does, is unlikely to, or does not contain waters of the state, including wetlands. A determination need not include the precise location or boundaries of any wetlands or waterways determined to be present.

(10) "Director" means the Director of the Department of State Lands or his or her designate.

(11) "Department " means the Oregon Department of State Lands, including the Director.

(12) "Final Order" means a final agency action expressed in writing. "Final order" does not include any tentative or preliminary agency statement, including a "preliminary jurisdictional determination," and does not preclude further agency consideration of the subject matter of the final order.

(13) "Global Positioning System" (GPS) means a navigation system which consists of a network of satellites and earth receiver stations which allows a person to determine, via a receiver, their respective position in latitude, longitude, and altitude.

(14) "Indicator" means soil characteristics, vegetation, hydrology evidence or other field data that indicate, by their presence or absence, the existence of certain environmental conditions. Indicators are used with other information, mapped or anecdotal, to determine the state's jurisdiction over waters of the state.

(15) "Jurisdictional Determination" (JD) means a written decision by the Department that waters of the state subject to regulation and authorization requirements of OAR 141-085, 141-089, 141-0100 and 141-0102 are present or not present on a land parcel. The JD may include a determination of the geographic boundaries of the water area subject to state jurisdiction. For example, a JD may include the location of a wetland boundary or the location of the ordinary high water line of a waterway. A JD may, but does not necessarily, include a determination that a particular activity in a water of this state is subject to authorization requirements. The decision record includes the basis of the jurisdictional determination and is a final order subject to reconsideration according to the provisions in 141-090-0050.

(16) "Landowner" means the legal owner of the parcel(s) for which a JD is requested or made.

(17) "Local Wetlands Inventory" (LWI) means a wetland inventory map and supporting data that is conducted according to the requirements in OAR 141-086 and has been approved by the Department.

(18) "Manual" means the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual.

(19) "National Wetlands Inventory" (NWI) means the wetlands inventory prepared by the U.S. Fish and Wildlife Service.

(20) "New Information" means data, reports, photographs, observations or similar information that is provided to or obtained by the Department after the Department has issued a jurisdictional determination or issued an authorization.

(21) "Non-wetland" means an area that does not meet the wetland definition and criteria.

(22) "Normal Circumstances" means the hydrology, soil and vegetative conditions that are naturally present, regardless of whether or not the soil or hydrology has been recently altered or the natural vegetation has been removed or altered. "Normal circumstances" includes a consideration of the permanence of any change to the site; for example, if several feet of fill material are placed on a wetland the new "normal circumstances" may be non-wetland. In such a situation, the Department may determine if the placement of fill material required a fill permit.

(23) "Offsite Determination" means a determination by the Department or any other person that is conducted without a site visit using maps, aerial photographs, observations from adjacent areas, and/or interviews with persons familiar with the site. An offsite determination is considered to be a Preliminary Jurisdictional Determination unless otherwise stated in writing by the Department.

(24) "Onsite Determination" means a determination by the Department or any other person that includes a site visit to collect relevant data. An onsite determination may be either a Preliminary Jurisdictional Determination or a JD.

(25) "Other Waters" means waters of the state other than wetlands.

(26) "Person" means an individual, corporation, firm, partnership, estate, association, body of government or other legal entity.

(27) "Preliminary Jurisdictional Determination" (PJD) means an advisory determination issued orally or in writing stating that wetlands or other waters of the state are present or not present on a parcel of land. Because a PJD is advisory in nature it has no specified duration or expiration and is not subject to appeal. PJDs include all wetland determinations by any person other than the Department, and also include wetlands mapped on the NWI or on a LWI.

(28) "Primary Contact" means the person or firm designated by the landowner, agent or applicant to serve as the Department 's contact for the purpose of the review and approval of a wetland determination or delineation report.

(29) "Removal-Fill Law" means ORS 196.800 through 196.990 and rules adopted thereunder relating to the filling and/or the removal of material in waters of the state.

(30) "Report" means a wetland determination or delineation report.

(31) "Sample Plot" means an area on a parcel of land within which environmental data (e.g., soils, hydrology and vegetation) are collected that is representative of that area.

(32) "Waters of the state" means natural waterways including all tidal and nontidal bays, intermittent streams, constantly flowing 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 (ORS 196.800(14) and 141-085-0010 and 0015).

(33) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions (ORS 196.800(16) and 141-085-0010).

(34) "Wetland Boundary" means a line marked on the ground and/or on a map that identifies the boundary line between wetlands and non-wetlands.

(35) "Wetland Delineation Report" means a written document that contains the methods, data, conclusions and maps used to determine if wetlands and/or other waters of the state are present on a land parcel and, if so, describes and maps their location and geographic extent.

(36) "Wetland Determination Report" means a written document that contains the methods, data, conclusions and maps used to determine if wetlands and/or other waters of the state are present on a land parcel and, if so, describes their approximate location and size.

(37) "Wetland Map" means a map included in a Wetland Determination or Delineation Report or provided by the Department that shows the parcel(s) and/or areas investigated and the location, size and boundaries of any wetlands and other waters.

Stat. Auth.: ORS 196.845, 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692, 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 2-2003(Temp) f. & cert. ef. 11-26-03 thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0025

Procedures for Determinations Conducted Entirely by the Department

(1) The Department shall make a determination (PJD or JD) according to the procedures in this section.

(2) The Department may make a determination for a number of reasons, including but not limited to:

(a) A written request from any person (e.g., a landowner or their agent) requesting a determination for a particular parcel or parcels;

(b) A Wetland Land Use Notice from a local government as required by ORS 196.676;

(c) A site development notice from a local government;

(d) A request from a local government or other government entity acting in its capacity to conduct site assessments for project or planning purposes;

(e) A removal-fill authorization application, request for a pre-application meeting or a compliance investigation;

(f) A request to review and approve a wetland determination or delineation report (see additional requirements and procedures in 141-090-0030 and 141-090-0035); or

(g) In conjunction with its authority and responsibilities under ORS 196.600 to 196.962, 196.800 to 196.990 and any applicable rules of the Department.

(3) The Department may prioritize the completion of determinations based upon the availability of staff and budget resources.

(4) A request to the Department to provide a determination apart from an authorization application or local government notice shall include:

(a) A written request including landowner/agent permission to conduct a site visit;

(b) Landowner or agent name, company or agency, mailing address and phone number;

(c) A location map such as a city map showing the precise parcel location with respect to nearest streets and parcel address, if any;

(d) A detailed site map such as a tax map or hand drawn parcel map showing, as appropriate, such features as the location of streets, roads, buildings, streams, and area of any planned development or fill or excavation, if known; and

(e) The legal location from the tax map (Township, Range, Section, Quarter Quarter Section and Tax Lot numbers).

(5) A request for a determination may include additional helpful information, such as:

(a) A large scale topographic map of the site (e.g., 1 inch = 50 feet);

(b) A large scale aerial photograph of the site; or

(c) Photographs of the site.

(6) The Department will review the information provided with the request along with other available maps and information and provide a PJD or a JD.

(7) The Department may request additional information and/or conduct a site visit to ensure an accurate determination. The Department shall contact the applicant or primary contact prior to conducting a site visit.

(8) An Onsite JD conducted by the Department shall include at a minimum:

(a) A location map showing the location of the parcel(s) with respect to major roads;

(b) A parcel map showing property boundaries;

(c) The legal location from the tax map (Township, Range, Section, Quarter Quarter Section and Tax Lot numbers).

(d) The NWI map or, if available, the LWI map with the site located;

(e) The county soil survey map with site located and soil type(s) mapped on the site identified;

(f) A sketch map showing the approximate location of any waters of the state on the parcel(s);

(g) At least one data form (or equivalent notes) documenting any wetlands identified or possible wetlands determined not to meet wetland criteria; and

(h) Conclusions and recommendations regarding additional requirements (e.g., the need for a delineation or permit), as appropriate to the determination request and the situation.

(9) After review of the information and the site visit, if conducted, the Department may:

(a) Provide a written PJD or JD in accordance with Subsection (10) of this section; or

(b) Provide a written PJD and recommend that the landowner, agent or applicant obtain a wetland determination and/or delineation that meets the requirements in 141-090-0030 and 141-090-0035.

(10) A written PJD or JD by the Department shall include at a minimum:

(a) A letter or form addressed to the applicant, landowner or agent that includes the location of the parcel(s) investigated, a file number for future reference, and the expiration date of the JD, or a response on or attached to a wetland land use notice form or other site development notice submitted by a local government; and

(b) Comments regarding the precision or use of the PJD or JD, as appropriate;

(c) Additional requirements or recommendations, such as the need for a wetland delineation;

(d) A determination of the requirements or exemptions in accordance with OAR 141-085, 141-089, 141-0100 and 141-0102 that apply to any waters of the state identified on the parcel(s) and/or the proposed activity, if the information provided to or obtained by the Department is sufficient to make such determination; and

(e) A map or reference to a map showing the parcel(s) investigated and the approximate location and boundaries of any waters of the state identified on the parcel(s), unless the information provided to or obtained by the Department is not sufficient to make or refer to such a map.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0030

Technical Requirements

(1) Wetland determinations and delineations shall be conducted in accordance with the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual ("the manual") along with any supporting technical or guidance documents issued by the Department and applicable guidance issued by the U.S. Army Corps of Engineers for the area in which the wetlands are located.

(2) In addition to the requirements in this section, wetland determination and/or delineation reports submitted to the Department for review and approval shall meet the standards and requirements in 141-090-0035.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 2-2003(Temp) f. & cert. ef. 11-26-03 thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0035

Standards and Requirements for Wetland Determination and Delineation Reports Submitted to the Department

(1) General Requirements: All wetland determination and/or delineation reports ("reports") submitted to the Department for review, approval and a JD shall meet the technical requirements in 141-090-0030 as well as the minimum standards and requirements in this section.

(2) All wetlands or other waters on the parcel or study area shall be included; the Department will determine whether or not they are "waters of the state" subject to jurisdiction under OAR 141-085, 141-089, 141-0100 and 141-0102.

(3) All reports shall include the following sections:

(a) A fully completed "Wetland Delineation/Determination Report Cover Form" (form provided by the Department);

(b) Text as described in subsection (8) of this section;

(c) Maps as described in subsections (9) through (14) of this section;

(d) Data forms as described in subsections (15) and (16) of this section; and

(e) Appendices, as needed.

(4) All report text, maps, aerial photographs and data forms must be legible and, with the exception of aerial photographs, must copy legibly on a black and white copier.

(5) If a wetland function and condition evaluation is conducted, the methods and results of that evaluation should be presented in a separate section of the report or in a separate document.

(6) All reports shall include:

(a) The name, address, phone number, fax number and e-mail (if any) of the landowner;

(b) The name, address, phone number, fax number and e-mail (if any) of the applicant, if different;

(c) The address or, if no address is assigned, the approximate location of the site investigated, including county and city if within a city limits;

(d) The tax map number including the Township, Range, Section(s), Quarter Quarter Section(s), and Tax Lot(s) of the parcel(s) covered by the report;

(e) The latitude and longitude of the centroid of the parcel(s) or the start and end points of a linear project;

(f) The name, address, phone number, fax number, and e-mail address of the person that prepared the report; and

(g) Permission in writing from the landowner or agent, or a duly authorized representative of the landowner or agent, for the Department or its authorized representative to conduct a site visit.

(7) Reports may include, or the Department may in some circumstances require:

(a) Aerial photographs;

(b) Photographs of the site;

(c) A detailed topographic survey of the site; and

(d) Additional information regarding site history or field indicators helpful to evaluating the site and making a JD.

(8) Text Requirements: The report text shall include, in addition to the elements in subsection (6) of this section:

(a) A detailed description of the site, its landscape setting, and previous and current land uses;

(b) A description of any wetlands, including whether or not they extend offsite, and the characteristics of the wetland/non-wetland boundaries on the site;

(c) A description, approximate year , and analysis of any site alterations that likely affected the presence, location or geographic boundaries of any waters of the state on the site (e.g., surface drainage ditches or fill material);

(d) The site-specific methods used to conduct the field investigation, select sample plot locations, and make the PJDs;

(e) The methods and rationale used to determine the boundaries of any wetlands on the site;

(f) The wetland map accuracy (see subsection 12 of this section);

(g) The methods used to determine the geographic extent of other waters of the state (e.g., ordinary high water);

(h) The date(s) of the field investigation(s);

(i) The precipitation on the day of and immediately preceding (approximately 1 to 2 weeks) the date(s) of the field investigation(s) and percent of normal rainfall for the water year to date;

(j) The results and conclusions of the investigation; and

(k) The following statement: "This report documents the investigation, best professional judgment and conclusions of the investigator. It is correct and complete to the best of my knowledge. It should be considered a Preliminary Jurisdictional Determination of wetlands and other waters and used at your own risk unless it has been reviewed and approved in writing by the Oregon Department of State Lands in accordance with OAR 141-090-0005 through 141-090-0055."

(9) Map Requirements: All reports shall include the following maps:

(a) A location map, such as city map, showing the precise site location;

(b) A tax lot map showing the entire parcel(s);

(c) The appropriate LWI map showing the site location and boundaries, or if no LWI has been completed, the NWI map(s), including map name(s), showing the site location and boundaries;

(d) The county soil survey map, if published, showing the site location and boundaries and including a legend identifying the sheet number and all soil series mapped on the site; and

(e) One or more wetland maps comprising the wetland determination and/or delineation that shows parcel and/or study area boundaries and tax lot number(s), includes all waters of the state on the site, and meets the additional requirements in subsections (10) through (14) of this section.

(10) The wetland map(s) shall be at a scale suitable for the site size and for legibility. For most purposes, an appropriate map scale is 1 inch = 100 feet. For large sites or projects, a scale of 1 inch = 200 feet or smaller is preferable. Minimum map scale for a JD and/or for permitting purposes is subject to Department approval.

(11) The wetland map(s) shall at a minimum include:

(a) The boundaries of the entire parcel(s) subject to investigation; or

(b) If only a portion of the parcel(s) was investigated, the study area boundary in relation to the parcel boundaries; and

(d) Existing structures (unless shown on a current aerial photo included in the report), areas of fill, water diversions, or other major alterations;

(d) All water features and their boundaries;

(e) Numbered sample plots corresponding to data forms (see subsections (15) and (16) of this section);

(f) North arrow and scale bar; and

(g) Photograph locations and direction of view, if photographs are included in the report.

(12) The wetland map(s) and the report text shall indicate whether the location of the parcel boundaries and waters of the state depicted on the map are approximated, measured from known points visible on the map or on an aerial photo included with the report, mapped using a GPS, or professionally land surveyed, and shall include the estimated accuracy of the mapping (in feet) relative to the actual location of the boundaries on the ground. The estimated map accuracy should reflect both the precision of the field work and the precision of the mapping (i.e., using the map, how accurately could a person relocate the wetland boundary?). If mapping was done using a GPS, provide the post-processing error estimate for the mapping precision.

(13) The appropriate or necessary degree of map accuracy is dependent upon a variety of factors including, but not limited to, the size and complexity of the site and whether the map is provided as part of a wetland determination (showing approximate wetland location) or a wetland delineation. A very precise wetland delineation map prepared by a registered professional land surveyor or by a trained person using a mapping or survey grade GPS is generally needed for such activities as subdivision planning and removal-fill permitting.

(a) The level of map detail and accuracy must be substantiated by a corresponding level of field investigation and data collection detail (See subsection 17 of this section).

(b) The appropriate level of map accuracy for removal-fill permitting is subject to the judgment of the Department.

(c) The Department may condition its approval of a report to reflect the Department 's judgment of map accuracy and suitability (see Subsection 10).

(14) The wetland map may be hand drawn or computer assisted. For large sites, the wetlands and other waters identified may be mapped onto a large scale aerial photograph (to be included in the Report) but must also be accurately transferred to a drawn map (as described in subsections (11) and (12) of this section) unless otherwise authorized by the Department.

(15) Data Form Requirements: All reports shall include a wetland determination data form for each sample plot. The data form used must be that provided by the Department or, if a customized data form is used, it must include all of the information contained on the Department prescribed data form and be clearly laid out in a similar format.

(16) All wetland determination data forms must:

(a) Be fully completed;

(b) Include only data collected from a single sample plot on a single date (additional dates of hydrology data may be reported in the comments section);

(c) Include the Latin botanical name and percent cover of all plant species listed;

(d) Use the 50/20 method (as described in the on-line edition of the Manual) for determining dominant plant species;

(e) Use standard soils terminology and abbreviations as established by the U.S. Department of Agriculture, Natural Resources Conservation Service; and

(f) Include the depth range below ground surface (dug to at least 16 inches) of soils and hydrology features noted (e.g., 0-3 inches, 3-8 inches, 8-16 inches).

(17) Field Methods: The field investigation methods and level of detail required for making and documenting a PJD or JD and mapping waters of the state is dependent upon site size, complexity and disturbance history, and on whether atypical situations or problem areas are encountered. At a minimum:

(a) The entire parcel (tax lot) or project area must be investigated during a field investigation. If only a portion of a parcel or project area is investigated, that must be made clear in the report text and on the wetland maps.

(b) All waters of the state in addition to wetlands must be identified, described, supported by data as appropriate, and mapped.

(c) Sufficient data and additional information shall be collected for any waters of the state to enable the Department to make an JD and also to determine if removal-fill permit requirements apply or if the water identified may be specifically exempt from permit requirements.

(d) Wetland delineation data must include a sample plot that best represents the characteristics of each wetland present (minimum of one plot per wetland); a sample plot that best represents adjacent non-wetland(s); and paired sample plots located close enough to either side of the wetland boundary (e.g. 4 (four) feet apart) to substantiate the wetland boundary location.

(e) Wetland determination data must be provided for any site or portion of a site where there is significant deviation from wetlands mapped on the NWI or LWI. Note in the report text if the deviation is due to development of the area mapped as wetland on the NWI or LWI, thus precluding data collection.

(f) If the site does not contain wetlands, at least one sample plot must be placed in the lowest topographic area or other location most likely to contain wetlands to document site conditions.

(18) If a wetland boundary is long or irregular in shape, paired data points sufficient to accurately identify and substantiate the wetland boundary are required; for a very irregular wetland boundary, several pairs of plots may be required. If the wetland boundary can be determined based upon one set of paired data points and a defined break in slope or other clearly visible features, that information must be fully described in the report text.

(19) Parcel boundaries, wetland boundaries and sample plots shall be identified on the ground with numbered stakes, flags, spray paint or similar markers, and/or identified on an aerial photo and/or the wetland map, such that the boundaries and sample plots can be readily relocated in the field during a site visit by the Department.

(20) Because sites are highly variable and JD needs also vary, there are many potential situations where minimal field documentation may be acceptable (e.g., linear projects covering extremely large geographic areas), where non-standard field documentation and wetland mapping may be appropriate (e.g., intricate wetland/non-wetland mosaics), or where more intensive sampling may be required (e.g., an atypical site). In such situations, persons conducting wetland delineations are encouraged to consult with the Department regarding appropriate methods.

(21) Depending on site conditions and circumstances, additional information that may be required to establish state jurisdiction includes, but is not limited to:

(a) Documentation of fish presence or absence in a stream or ditch, using published maps or reports or information from an authoritative source (e.g., Oregon Department of Fish and Wildlife field staff);

(b) Data sufficient to determine whether or not an identified water area is artificially created entirely from upland and/or the purpose for which it was created;

(c) Hydrology monitoring data;

(d) Historical aerial photographs;

(e) Extent and date of site alterations;

(f) Data or other information on pre-disturbance conditions, such as excavation to an original (unfilled) soil surface or identification of a former stream course;

(g) Data collected at a certain time of year;

(h) Additional plant species identification; or

(i) More rigorous field sampling methodologies.

(22) Short Report Option: An abbreviated wetland determination process and short report format may be used in lieu of the requirements in subsections (3) through (21) of this section for reporting the results of a PJD on very small parcels or study areas (one-quarter acre or smaller) according to the following conditions and requirements:

(a) There are no wetlands or other waters mapped on the NWI or LWI for the parcel, the parcel has not been farmed or recently disturbed in any way that would obscure wetland indicators, and in the judgment of the investigator the parcel is clearly non-wetland in its entirety and contains no other potential waters of the state.

(b) The report includes:

(A) A fully completed "Wetland Determination Form for Small Parcels With No Wetlands" (form provided by the Department) and all map attachments listed on the form; and

(B) At least one completed data form reporting data collected at the lowest topographic area on the site or other area most likely to meet wetland criteria based upon soils mapping, vegetation or other characteristics and indicators. The plot location must be shown on the parcel map.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0040

Procedures for Review and Approval of a Wetland Determination or Delineation Report Submitted to the Department for a Jurisdictional Determination

(1) When a wetland determination or delineation report is submitted to the Department for review, approval and a JD, the Department shall review the report (according to its established priorities) to ensure that:

(a) The work meets the technical requirements in 141-090-0030;

(b) The report meets the standards and requirements in 141-090-0035;

(c) There is sufficient information for the Department to make a JD, including the geographic extent of any waters identified, as appropriate; and

(d) There is sufficient information for the Department to determine the removal-fill authorization requirements or exemptions that apply to the wetlands or other waters identified and/or the activities proposed.

(2) During or upon completion of the Department 's review, the Department may take any of the following actions:

(a) Approve all or a portion of the report and PJD by providing a written JD to the landowner, agent or applicant and the consultant, if any, in accordance with 141-090-0025(9).

(b) Request missing information, clarification or additional data (see 141-090-0035(21)).

(A) The request will be made to the primary contact by telephone, e-mail or in writing.

(B) If the Department makes a written request to the primary contact, the Department will copy the request to the consultant, landowner and/or applicant, as appropriate.

(C) The primary contact shall be responsible for promptly informing the Department of any change in the primary contact during the Department 's review process.

(c) Conduct a site visit to confirm the report findings or obtain additional information (See 141-090-0025(6));

(d) Revise the wetland map and/or the PJD based upon the report review, any additional information requested, and/or a site visit, and provide a JD accordingly after consulting with the primary contact and report author, if different; or

(e) Reject the report, along with a written explanation to the primary contact, without further review or approval, if:

(A) The work has not been completed according to the technical requirements in 141-090-0030;

(B) The report does not meet the standards and requirements in 141-090-0035;

(C) The report does not, in the judgment of the Department, accurately reflect site conditions or provide sufficient information for a JD; or

(D) Additional or clarifying information, permission for a site visit, or requested revisions are not provided within 120 calendar days of the Department's written request.

Stat. Auth.: ORS 196.845, 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0045

Duration, Expiration and Reissuance of Jurisdictional Determinations

(1) All JDs by the Department shall be in writing and shall remain valid for a period of not more than five years from the date of issuance unless:

(a) A field investigation or new information reveals that site conditions and/or the geographic extent of waters of the state are not consistent with the information in a report or permit application submitted to the Department;

(b) Additional site information or data is provided voluntarily by an applicant or landowner to the Department;

(c) Additional information is provided to or obtained by the Department in conjunction with a request for reconsideration (141-090-0050) or a contested case hearing associated with an authorization application (ORS 196.825(6) and 141-085-0075);

(d) Information is provided to or obtained by the Department in conjunction with an appeal to the U.S. Army Corps of Engineers of an Approved Jurisdictional Determination (33 CFR Parts 320, 326 and 331); or

(e) New information obtained by or provided to the Department shows a change in circumstances resulting in a change in the jurisdictional area.

(2) Upon expiration, a JD is no longer valid for purposes of the Removal-Fill Law.

(3) An expired JD may be reissued upon written request from the landowner or agent to the Department.

(4) Information required for reissuing a JD shall include at a minimum:

(a) Onsite re-inspection by Department staff and/or another person to determine if there has been any change in circumstances.

(b) If no change in circumstances is found, a short report noting or including:

(A) A fully completed Wetland Delineation/Determination Report Cover Form, unless the inspection is conducted by the Department;

(B) The date of the most recent field inspection;

(C) The name of the person conducting the field inspection;

(D) The precise area inspected (e.g., tax lot or portion of tax lot);

(E) Description of site conditions and any changes between the date of the original wetland determination or delineation and the date of the re-inspection;

(F) Any additional maps, aerial photographs or other documents consulted; and

(G) Conclusions regarding the accuracy of the original JD.

(c) If a change in circumstances is noted, the information in subsection (4)(b) of this section shall be provided along with:

(A) Additional field data, including wetland determination data in conformance with OAR 141-090-0035(15) and (16), needed to verify and document any change in the jurisdictional status or extent of waters of the state that were or were not identified and mapped as part of the original jurisdictional determination;

(B) A revised wetland map that meets the requirements in OAR 141-090-0035(9)(e); and

(C) Data, documentation, and other information as needed to establish the nature and timing of the activity or activities that resulted in the change in circumstances, particularly if fill or excavation has occurred.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0050

Request for Reconsideration

(1) A JD by the Department may be reconsidered upon written request to the Department by the applicant, landowner or agent within sixty (60) calendar days of the date of the JD (date the letter or form was signed by the Department). The request for reconsideration initiates an informal review process.

(2) New information may be provided by the applicant, landowner, agent or the Department, or may be requested by the Department.

(3) A reconsideration may result in a modified JD or in the reaffirmation of the original JD.

(4) In the event that the applicant, landowner or agent disagrees with the reconsideration decision, he or she may initiate a contested case proceeding pursuant to ORS 183.413 through 183.470.

Stat. Auth.: ORS 196.845, 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-090-0055

Effective Date

These rules become effective immediately upon filing with the Secretary of State.

Stat. Auth.: ORS 196.845 & ORS 196.692
Stats. Implemented: ORS 196.800-990, 196.600-665, 196.668-692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04


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

--------------------------------------------------------------------------------