Or. Admin. R. 141-090-0020

Current through Register Vol. 63, No. 9, September 1, 2024

Section 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, or a removal or fill authorization.

(3) "Aquatic Resources of Special Concern" (ARSC) means waters of this state that provide functions, values and habitats that are limited in quantity because they are naturally rare or have been disproportionately lost due to prior impacts. These include bogs, fens, cold water habitat, hot springs, interdunal wetlands, kelp beds, mature forested wetlands, native eelgrass beds, off-channel habitats (alcoves and side channels), ultramafic soil wetlands, vernal pools, wet prairies, wooded tidal wetlands, certain alkaline wetlands and lakes, and others as determined by the Department.

(4) "Authorization Application" means the written application for an authorization to place fill in or remove material from waters of this 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 or substrate to the extent that the "normal circumstances" of waters of this state are changed. The change in circumstances may be due to alterations on- or off-site 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 person who provides professional services to the public.

(8) "Cowardin" means Cowardin, L. M., V. Carter, F. C. Golet, E. T. LaRoe. 1979. Classification of wetlands and deepwater habitats of the United States, U. S. Department of the Interior, Fish and Wildlife Service, Washington, D.C.

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

(10) "Delineation Map" means a map included in a Wetland Delineation Report or provided with a Jurisdictional Determination by the Department that shows the tax lot(s) and study area(s) investigated and the location, size, and boundaries of all wetlands and other waters.

(11) "Determination" means a decision that a site may, does, is unlikely to, or does not contain waters of this state. A determination does not include the exact location or boundaries of waters of this state.

(12) "Director" means the Director of the Department of State Lands or their designee.

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

(14) "Fill" means the total of deposits by artificial means equal to or exceeding 50 cubic yards or more of material at one location in any waters of this state. However, in designated essential salmonid habitat (ESH) areas (OAR 141-102) and in designated State Scenic Waterways (OAR 141-100) "fill" means any amount of deposit by artificial means.

(15) "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.

(16) "Geographic Information System" (GIS) means a system of hardware, software, and data storage that allows for the analysis and display of information that has been geographically referenced.

(17) "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.

(18) "Hydrogeomorphic Method" (HGM) means the wetland classification based on a wetland's location in the landscape and the sources and characteristics of water flow defined in Adamus, P.R.2001. Guidebook for hydrogeomorphic (HGM)-based assessment of Oregon wetland and riparian sites: Statewide classification and profiles. Oregon Division of State Lands, Salem, OR.

(19) "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 wetlands and other waters.

(20) "Jurisdictional Determination" (JD) means a written decision by the Department that waters of this state subject to regulation and authorization requirements of OAR 141-085, 141-089, 141-0100 and 141-0102 are present or not present within a study area. The JD may include a delineation of the geographic boundaries of the 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 (ordinary high water mark) 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.

(21) "Landowner" means the legal owner of the property for which a JD is requested or made.

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

(23) "Manual" means the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual including the two regional supplements that cover Oregon: Arid West and Western Mountains, Valleys, and Coast, and applicable guidance (see OAR 141-090-0030) all of which is hereby incorporated by reference. The public may obtain a copy of the manual from the Department's website.

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

(25) "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.

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

(27) "Normal Circumstances" means the soil and hydrologic conditions that are normally present, without regard to whether the vegetation has been removed. "Normal circumstances" includes a consideration of the permanence of any change to the site; for example, if fill material is 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.

(28) "Off-site Determination" means a determination by the Department or any other person that is conducted without a site visit using resources such as maps, remotely sensed imagery, observations from adjacent areas, or interviews with persons familiar with the site. An off-site determination is a Preliminary Jurisdictional Determination (PJD) unless otherwise stated in writing by the Department.

(29) "On-site Determination" means a determination by the Department or any other person that includes a site visit to collect relevant data. An on-site determination by the Department may be either a PJD or a JD.

(30) "Other Waters" means all waters other than wetlands regardless of jurisdiction.

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

(32) "Preliminary Jurisdictional Determination" (PJD) means an advisory determination issued in writing stating that waters of this state are present or not present within a study area. 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 may also include wetlands mapped on the SWI.

(33) "Primary Contact" means the person 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.

(34) "Removal" means the taking of more than 50 cubic yards of material (or its equivalent weight in tons) in any waters of this state in any calendar year; or the movement by artificial means of an equivalent amount of material on or within the bed of such waters, including channel relocation. However, in designated ESH areas (OAR 141-102) and in designated State Scenic Waterways (OAR 141-100) the 50-cubic-yard minimum threshold does not apply.

(35) "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 this state.

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

(37) "Sample Plot" means a portion of a study area within which environmental data (i.e., soils, hydrology, and vegetation) are collected that is representative of that area and documented on a wetland determination data form.

(38) "Site-specific methods" means sampling, delineation, and investigative procedures used to address the unique circumstances at a site. Boilerplate content from the manual and generic procedures are not site-specific.

(39) "Statewide Wetlands Inventory" (SWI) means a composite of wetland mapping (i.e., LWI, NWI, approved wetland delineations) and other natural resource mapping for the state of Oregon that is provided by the Department. The SWI is a screening tool to help identify approximate locations of potential wetlands and waterways and is continually revised as additional digital mapping information is received or obtained by the Department.

(40) "Study Area" means the area that was investigated for the presence of wetlands and other waters.

(41) "Upland" means any land that is not a wetland or other water.

(42) "Waters of this state" means all natural waterways, 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, and all other navigable and non-navigable bodies of water in this state and those portions of the ocean shore, as defined in ORS 390.605, where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.

(43) "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(17) and OAR 141-085-0510 (110)).

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

(45) "Wetland Delineation Report" means a written document that contains the methods, data, conclusions, and maps used to determine if wetlands and other waters of this state are present within a study area and, if so, describes and maps their locations and geographic extent. A wetland determination report documenting the presence or absence of waters of this state is included within this definition.

Or. Admin. R. 141-090-0020

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; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13; DSL 2-2023, amend filed 05/05/2023, effective 6/1/2023

Statutory/Other Authority: ORS 196.845 & 196.692

Statutes/Other Implemented: ORS 196.800 - 196.990, 196.600 - 196.665, 196.668 - 196.692 & 197.279