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State
Oregon Regulations
CHAP 141 DIVISION 102 OREGON ESSENTIAL INDIGENOUS ANADROMOUS SALMONID HABITAT (ESH)




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

DEPARTMENT OF STATE LANDS


DIVISION 102
OREGON ESSENTIAL INDIGENOUS ANADROMOUS SALMONID HABITAT (ESH)



141-102-0000

Purpose

Pursuant to ORS 196.810(b), these rules:

(1) Designate "essential indigenous anadromous habitat" (hereafter referred to as "essential habitat") on maps that are made a part of this rule;

(2) Establish the process to amend the designation; and

(3) Require an authorization from the Department for activities involving the fill or removal of any amount of material in essential habitat, unless the activity is:

(a) Exempt under ORS 196.905;

(b) Non-motorized "prospecting" (defined in ORS 390.835(18)(b) and 141-089-0040(3)); or

(c) An activity customarily associated with agriculture (defined in OAR 141-102-0020(1)).

Stat. Auth.: ORS 196.810

Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925

Hist: LB 4-1995, f. 12-13-95, cert. ef. 1-1-96; DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-102-0010

Policy

(1) It is the policy of the State of Oregon to protect the essential habitat of listed indigenous anadromous salmonid species.

(2) To achieve this policy, the Department shall:

(a) Consult with the Department of Fish and Wildlife (ODFW) concerning the status of Oregon's indigenous anadromous salmonid species;

(b) Identify essential habitat in consultation with ODFW and the public; and

(c) Review all projects proposed in essential habitat pursuant to the standards set forth in the state's Removal-Fill Law and rules (OAR 141-085-0005 to 141-085-0660).

Stat. Auth.: ORS 196.810

Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925

Hist: LB 4-1995, f. 12-13-95, cert. ef. 1-1-96; DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-102-0020

Definitions

(1) "Activities customarily associated with agriculture" (ORS 196.810(b)) is a phrase that applies only to fill or removal of less than 50 cubic yards in essential indigenous anadromous salmonid habitat. This subsection exempts other specified agricultural activities that are less than 50 cubic yards in addition to the activities that are already exempted under the Removal-Fill Law's agricultural exemptions contained in ORS 196.905(3), (4) and (6) and 141-085-0020 that apply to all projects regardless of size. "Activities customarily associated with agriculture" includes maintenance of an existing irrigation structure at an existing point of diversion (as defined in OAR 690-015-0005) to maintain previously constructed agricultural drainage or irrigation channels, or to maintain or replace any associated and necessary pumps, tide gates, levees, groins and/or other drainage or irrigation-related devices. Exempt activities also include maintaining existing culverts under farm or ranch roads by removing debris.

(2) "Essential indigenous anadromous salmonid habitat" as defined in ORS 196.810(f)(B) is called "essential habitat" in these rules. "Essential habitat" means the habitat that is necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing as designated in these rules and shown on the associated maps that are incorporated by reference into these rules. "Activities customarily associated with agriculture" (ORS 196.810(b)) is a phrase that applies only to fill or removal of less than 50 cubic yards in essential indigenous anadromous salmonid habitat. This subsection exempts other specified agricultural activities that are less than 50 cubic yards in addition to the activities that are already exempted under the Removal-Fill Law's agricultural exemptions contained in ORS 196.905(3), (4) and (6) that apply to all projects regardless of size.

(3) "Essential" means those portions of a stream reach that fill all or part of the basic or indispensable spawning and rearing need of indigenous anadromous salmonids and are those areas necessary to prevent the depletion of indigenous anadromous salmonids. Such areas include "spawning and rearing," and "rearing and migration" areas as defined below under subsections (3) and (4) of this section.

(4) "Indigenous anadromous salmonid" means Chum, Sockeye, Chinook and Coho Salmon, and Steelhead and Cutthroat Trout that are members of the family of Salmonidae and are listed as sensitive, threatened or endangered by a state or federal authority.

(5) "Spawning and rearing" areas are where eggs are deposited and fertilized, where gravel emergence occurs, and where at least some juvenile development occurs.

(6) "Rearing and migration" areas are outside primary spawning habitats where juvenile fish take up residence during some stage of juvenile development and utilize the area for feeding, shelter, and growth. Some migration also occurs as juvenile and adult fish move between the ocean and spawning areas.

Stat. Auth.: ORS 196.810
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist: LB 4-1995, f. 12-13-95, cert. ef. 1-1-96; DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-102-0030

Designation of Essential Salmon Habitat (ESH)

(1) Areas designated as essential habitat shall include the waters of the state as described in OAR 141-085-0015, including side channels and off-channel wetland areas that are hydrologically connected by surface water.

(2) The streams and stream segments designated as essential habitat are shown on maps which are made part of this rule.

(3) The Department shall make available detailed maps of essential habitat at cost as provided in OAR 141-091-0005.

(4) New designations (i.e., streams not previously designated) adopted by the Department on the effective day of this rule shall be effective sixty (60) days thereafter.

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

Stat. Auth.: ORS 196.810
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist: LB 4-1995, f. 12-13-95, cert. ef. 1-1-96; DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-102-0040

Revisions to Essential Habitat

Revisions, additions to or deletions from the list and maps of essential habitat shall be made by amendment to these administrative rules according to the following procedure:

(1) Periodically, the Department shall request from the public and the Department of Fish and Wildlife all changes in the status or distribution of indigenous salmonid species under the state or federal Endangered Species Act or applicable rules.

(2) The Department, in consultation with Oregon Department of Fish and Wildlife and other affected parties, shall work to continuously improve the accuracy, detail, consistency and quality of the base data used for designating essential habitat. The Department shall revise the maps when new listings occur, or when de-listings occur by Oregon Department of Fish and Wildlife or the National Marine Fisheries Service. The Department may also revise the maps at any time when new or higher quality data become available that would substantially change the extent of designated habitat on one or more maps.

Stat. Auth.: ORS 196.810
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist: LB 4-1995, f. 12-13-95, cert. ef. 1-1-96; DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04

141-102-0045

Removal-Fill Law Requirements

(1) The standards at ORS 196.825 and the rules adopted to implement them shall apply to the authorizations issued under these rules.

(2) The standards at ORS 390.835(2) and 390.835(3)(a) - (b) and the rules adopted to implement them shall apply to removal/fill activities proposed for areas within designated Oregon State Scenic Waterways.

(3) Procedures to appeal a permit at ORS 196.835 and the rules adopted to implement them shall apply to the authorizations issued under these rules.

Stat. Auth.: ORS 196.810
Stats. Implemented: ORS 196.800 - 196.990 & 390.805 - 390.925
Hist.: DSL 8-1999, f. 3-9-99, cert. ef. 5-1-99; DSL 4-2001, f. & cert. ef. 4-18-01; DSL 1-2004, f. & cert. ef. 5-21-04


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