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The Oregon Administrative Rules contain OARs filed through January 15, 2010

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 delineation reports submitted to the Department for review and the procedures for Department review and approval.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800 - 196.990, 196.600 - 196.665, 196.668 - 196.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

141-090-0010

Applicability

(1) These rules establish the standards and procedures used by the Department of State Lands to identify waters of the 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 (141-086; 141-120); rules pertaining to the identification of significant wetlands (141-086); rules pertaining to General Authorizations (141-089); and rules pertaining to Oregon Scenic Waterways (141-100).

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

141-090-0015

Policy

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

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

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

(b) Make jurisdictional determinations using the best available science, technical guidance and documents;

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

(d) Provide jurisdictional determinations that improve the level of regulatory certainty for landowners and developers and that help ensure that fill or removal of material in waters of 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) 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 & 196.692
Stats. Implemented: 196.800 - 196.990, 196.600 - 196.665, 196.668 - 96.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

141-090-0020

Definitions

For the purpose of these rules:

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

(2) "Applicant" means a person who has applied to the Department for a wetland delineation report approval, a jurisdictional determination and/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 does 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 (see 141-090-0030).

(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 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 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) "Site-specific methods" means what the field investigator actually did in order to conduct the wetland determination or delineation and prepare the wetland delineation report; for example, the offsite resources actually consulted, why certain portions of a study area were or were not selected for field sampling, actual plot sizes for vegetation sampling, and explanation of best professional judgment relied upon. A generic description of methods the field investigator generally employs is not site-specific.

(33) "Study Area" means the area that was investigated for the presence of waters of the state (e.g., usually a portion of a tax lot(s), parcel or other legally defined geographic area).

(34) "Waters of the state" means all natural waterways, all tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, all other navigable and nonnavigable bodies of water in this state and those portions of the ocean shore, as defined in ORS 390.605. (ORS 196.800(14) and OAR 141-085-0010 and 141-085-0015).

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

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

(37) "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. A wetland determination report documenting wetland presence or absence is included within this definition.

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

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800 - 196.990, 196.600 - 196.665, 196.668 - 196.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 2-2003(Temp) f. & cert. ef. 11-26-03 thru 5-23-04; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

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;

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

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

(f) A request to review and approve a wetland delineation report (see additional requirements and procedures in 141-090-0030, 141-090-0032 and 141-090-0035); or

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

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

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

(a) A written request on a form provided by the Department;

(b) Landowner/agent permission to conduct a site visit if an onsite determination is desired;

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

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

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

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

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

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

(6) A wetland determination request as described in section (4) and (5) of this rule may not be used to obtain agency review and approval of a wetland delineation report (see 141-090-0032 and 141-090-0040).

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

(8) The Department may request additional information and/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.

(9) An onsite determination conducted by the Department to make a JD or PJD shall include at a minimum:

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

(b) A parcel map showing property boundaries;

(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.

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

(a) Provide a written PJD or JD in accordance with section (11) of this rule; or

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

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

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

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

(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 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.

141-090-0030

Technical Requirements

(1) Wetland determinations and delineations shall be conducted in accordance with the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual ("the manual"), including regional supplements and applicable guidance, and any supporting technical or guidance documents issued by the Department.

(2) The jurisdictional limits of other waters (e.g., streams, estuaries) are described in OAR 141-085-0015.

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

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

141-090-0032

Fees for Wetland Delineation Report Review

(1) Any person submitting a wetland delineation report to the Department for review and approval must pay to the Department a nonrefundable fee in the amount as determined under Chapter 850, OL 2007.

(2) If the person submitting a report withdraws the report from agency review after it has been submitted and the fee paid, or if the Department withdraws the report according to 141-090-0040(3)(d), any resubmittal is subject to a new fee.

(3) If a person wishes to change information in or expand the geographic area covered by a report that is pending initial review by the Department, a revised report may replace the previous report in its entirety, without incurring an additional fee. This provision does not apply to changes requested by the Department.

(4) A report that has been rejected by the Department per 141-090-0040(3)(f) may be revised and resubmitted along with an additional nonrefundable fee of $100.00.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: 196.800 - 196.990, 196.600 - 196.665, 196.668 - 96.692 , 197.279
Hist.: DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

141-090-0035

Standards and Requirements for Wetland Delineation Reports Submitted to the Department

(1) General Requirements: All wetland 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 rule. Reports must conform to the report format provided by the Department and must be unbound.

(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 and signed "Wetland Delineation Report Cover Form" (current form provided by the Department);

(b) Text as described in section (7) of this rule;

(d) Data forms as described in sections (14) and (15) of this rule;

(e) At least one recent aerial photograph (at least three aerial photos for farmed sites), including the month and year of the photos;

(f) Ground level color photographs of the site; and

(g) Appendices, as needed.

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

(5) A wetland function and condition evaluation should not be included.

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

(a) Additional aerial photographs;

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

(7) Text Requirements: The report text shall include:

(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 site-specific methods and rationale used to determine the boundaries of any wetlands on the site;

(f) An explanation of whether the location of the parcel boundaries and waters of the state depicted on the delineation map(s) are approximated, measured from permanent features identified on the map or on an aerial photo included with the report, mapped using a resource grade GPS, or professionally land surveyed. Also provide the wetland map precision (see sections 11 and 12 of this rule); if mapping was done using a GPS, provide the post-processing error estimate for the mapping precision;

(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), percent of normal rainfall for the water year to date, and monthly percent of normal precipitation (using the appropriate NRCS WETS table) for each of the three months preceding the field investigation;

(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."

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

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

(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 showing the site location and boundaries and including a legend identifying the sheet number, if applicable, 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 sections (9) through (13) of this rule.

(9) The wetland map(s) shall be at a scale suitable for the study area size and for legibility. For most purposes, an appropriate map scale is 1 inch = 100 feet. For large study areas, a scale of 1 inch = 200 feet may be sufficient. Minimum map scale for a JD and/or for permitting purposes is subject to Department approval.

(10) 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

(c) 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 sections (14) and (15) of this rule);

(f) North arrow and scale bar; and

(g) Photograph locations and direction of view.

(11) The wetland map(s) shall indicate whether the location of the parcel boundaries and waters of the state depicted on the map are approximated, measured from permanent features identified on the map or on an aerial photo included with the report, mapped using a resource grade GPS, or professionally land surveyed.

(12) For most intensive development activities, such as subdivision planning or commercial development, a professional land survey of flagged wetland boundaries and sample plots is strongly recommended and for some sites may be necessary to meet the required standard below:

(a) Except as provided in subsection (b) of this section and section 22 of this rule, the map precision standard (precision of transferring boundaries of features located on the ground to a map) for wetland boundaries, data plots and parcel and/or study area boundaries is one meter (3.28 feet);

(b) The minimum delineation accuracy and map precision standard for voluntary wetland restoration and enhancement projects (see OAR 141-089-0205) that do not include compensatory mitigation activities or payment-in-lieu is 50 feet.

(13) 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 sections (10) and (11) of this rule) unless otherwise authorized by the Department.

(14) Data Form Requirements: All reports shall include a wetland determination data form for each sample plot. The data form used must be that provided with the appropriate regional supplement to the manual, or other form provided by the Department.

(15) All wetland determination data forms must:

(a) Be fully completed;

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

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

(16) 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 or study area size, complexity of the site or the wetland boundaries, disturbance history, and on whether atypical situations or problem areas are encountered. At a minimum:

(a) The entire parcel (tax lot) or study area must be investigated during a field investigation. Investigation of entire parcels is strongly recommended and may be required for a permit application. If only a portion of a parcel is investigated, the study area with respect to parcel boundaries must be made clear in the report text and shown on the wetland maps.

(b) All waters of 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 a 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. four feet apart) to substantiate the wetland boundary location.

(e) Wetland determination data must be provided for any portion of the study area 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) At least one data plot must be placed in all mapped hydric soil units within the study area.

(g) If the study area does not contain wetlands, at least one sample plot must be placed in each of the lowest topographic areas or other locations most likely to contain wetlands to document site conditions.

(17) 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.

(18) Parcel boundaries, study area boundaries if applicable, 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.

(19) 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.

(20) On farmed sites (plowed and planted atypical sites), the natural vegetation is removed, soils are disturbed and most wetland hydrology field indicators are obscured by land management activities, making wetland delineation extremely difficult. It is important to use multiple information sources and indicators, including at least three aerial photos (early growing season if possible), a detailed topographic survey, and information about site management activities such as subsurface drainage systems.

(a) Field work conducted in the early growing season (e.g. late winter/early spring) is strongly recommended in order to verify seasonal wetland hydrology. The normal range of precipitation, referencing the NRCS WETS data, must be taken into consideration in analyzing hydrology data.

(b) If field work cannot be conducted in the early growing season, mapped hydric soils and any additional field-identified hydric soil areas are presumed to still meet wetland hydrology criteria unless there is substantial evidence that soils have been effectively drained (hydrology criterion no longer met). One or more field visits during the subsequent early growing season may be conducted to verify or adjust the delineation (e.g., make observations and collect data to confirm hydrology and any areas of drained hydric soil) or may be required by the Department.

(c) If the approach in subsection (b) of this section is inconclusive or anticipated to be inconclusive for all or portions of the site, water table monitoring at frequent intervals (minimum two days per week at regular intervals) for at least six weeks (or until criterion is met) through the early growing season may be proposed or required by the Department:

(A) Consultation with the Department regarding proposed monitoring methods is strongly recommended.

(B) Refer to the Corps of Engineers' "Technical Standard for Water-Table Monitoring of Potential Wetland Sites" (ERDC TN-WRAP-05-2) for additional guidance on collecting and analyzing water table data.

(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;

(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) The appropriate delineation accuracy and map precision for removal-fill permitting is subject to the judgment of the Department.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800 - 196.990, 196.600 - 196.665, 196.668 - 96.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

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 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) The Department shall complete an initial review of the report within 120 calendar days from receipt of the report and the fee.

(3) During or upon completion of the Department's review, the Department may take 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(10).

(b) Request missing information (report incomplete), clarification or additional data (see 141-090-0035(19 to 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.

(d) Withdraw the report from further review if missing, additional or clarifying information, or requested revisions, are not provided within 60 calendar days of the Department's written request;

(e) 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

(f) Reject the report, along with a written explanation to the applicant, consultant, landowner and agent, as appropriate. Examples of reasons for rejecting a report include, but are not limited to:

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

(B) Lack of payment of fee;

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

(D) The report contains major errors, omissions or inconsistencies according to the standards and requirements in 141-090-0035, such as but not limited to:

(i) Onsite data is not collected (e.g., offsite or reconnaissance level report);

(ii) No paired plots or number of paired plots is clearly inadequate for length and complexity of wetland boundaries;

(iii) Data forms with major gaps (e.g., no soils data collected);

(iv) Wrong data form used;

(v) Clearly erroneous data or conclusions;

(vi) All water features are not mapped;

(vii) Permission for a requested site visit is not granted;

(viii) Standard report format is not followed (141-090-0035(1));

(ix) Report cannot be field-verified because site preparation or construction has already commenced;

(x) The Department requests and conducts a site visit and the wetland boundaries and sample plots are not identified on the ground or cannot be accurately relocated by the consultant or applicant (see 141-090-0035(18)); or

(xi) After the second written request for information or revisions, the resubmitted information does not address all of the Department's comments or requests, and/or introduces new errors.

Stat. Auth.: ORS 196.845 & 196.692
Stats. Implemented: ORS 196.800-196.990, 196.600-196.665, 196.668 - 196.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

141-090-0045

Duration, Expiration and Reissuance of Jurisdictional Determinations

(1) All JDs by the Department shall be in writing and, except as provided in section (2) of this rule, shall remain valid for a period of not more than five years from the date of issuance. A JD may be revised by the Department prior to the expiration date if:

(a) A field investigation or new information reveals that site conditions 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 OAR 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) JDs that are issued in the form of a removal-fill authorization or those made for an enforcement action are not subject to the five-year expiration.

(3) Upon expiration, a report and JD are no longer valid for determining whether a state removal-fill authorization may be required.

(4) If the Department's report approval and JD has expired and agency approval is still needed or desired, the site must be revisited by a wetland professional and the report must be updated to meet the requirements in 141-090-0030 and 141-090-0035. The delineation report review fee must be submitted with a new report. At the discretion of the Department and within staffing ability, the Department may conduct a site visit to determine if a recently expired JD can be reissued or if a new report is required.

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; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

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 six months of the date of the JD (date the letter or form was signed by the Department). The request for reconsideration initiates an informal review process.

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

(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 196.800-196.990, 196.600-196.665, 196.668 - 196.692 & 197.279
Hist: DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08

141-090-0055

Effective Date

These rules become effective on January 1, 2008.

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