REMOVAL-FILL GUIDE

2024 EDITION

REMOVAL-FILL GUIDE

Applying for permits to work in wetlands, rivers,

streams, lakes, and other Oregon waters

CHAPTER QUICK LINKS

About the Department of State Lands

1. Working with DSL

Is a Removal-Fill Permit Needed?

2. When is a Permit Required?

3. What Activities are Exempt?

Applying for A Removal-Fill Permit

4. Planning Ahead

5. How to Apply for Authorizations

6. Processing the Permit Application

7. Emergency Permits

Mitigation

8. Compensatory Mitigation Planning

for Aquatic Resources

9. Developing a Mitigation Plan

10. Monitoring the Compensatory

Mitigation Site

Appendices

Additional Resources and Guidance

Table of Contents for the Removal-Fill Guide

Chapter 1: Working with the Aquatic Resource Management Program - 1-1

Chapter Overview

Organization of the Aquatic Resource Management Program 1-2

How the Aquatic Resource Management Program Works with Other Entities 1-4

Permit and Authorization-Related Services Provided by the Aquatic 1-9

Resource Management Program

Wetland and Waterway Mitigation Grants 1-11

Requesting Public Records 1-11

Reporting a Suspected Violation 1-11

Participating in Agency Improvements 1-13

Requesting Training or Speakers 1-13

Registering a Complaint or Compliment 1-14

Chapter 2: When is a Permit Required? - Chapter Overview 2-1

Waters of This State - Types of Jurisdictional Waters and Their Boundaries 2-2

Definition of Removal and Fill 2-13

Removal-Fill Volume Thresholds 2-14

Calculating Removal-Fill Volumes 2-16

Special Situations: Activities That Cannot Be Permitted by Rule or Law

Chapter 3: What Activities are Exempt? - Chapter Overview

2-19

3-1

State Forest Management Practices 3-2

Fills for Construction, Operation and Maintenance of Certain Dams and 3-3

Water Diversion Structures

Navigational Servitude (Maintenance of the Navigational Channel) 3-4

Maintenance or Reconstruction of Water Control Structures 3-4

Maintenance or Emergency Reconstruction of Roads and Transportation 3-6

Structures

Prospecting and Non-Motorized Activities within Designated Essential 3-7

Indigenous Anadromous Salmonid Habitat

Fish Passage and Fish Screening Structures in Essential Indigenous 3-7

Anadromous Salmonid Habitat

Fill or Removal for a Change in the Point of Diversion 3-8

Removal of Large Wood 3-8

Certain Voluntary Habitat Restoration Activities 3-9

Agricultural Exemptions 3-11

Exemptions in State Scenic Waterways 3-18

Special Situations: Railroads and Tribal Lands 3-19

Chapter 4: Planning Ahead - Chapter Overview 4-1

Identifying Regulated Waters on the Project Site 4-2

Retaining Professional Consultant Services 4-7

Exploring Alternatives to Avoid and Minimize Impacts 4-8

Planning to Mitigate for Unavoidable Impacts 4-11

Pre-design Permit Scoping: Identifying Other Permits and Their 4-12

Requirements

Pre-application Meetings 4-14

Chapter 5: How to Apply for Authorizations - Chapter Overview 5-1

Types of Permits 5-2

iii

Completing the Application Forms 5-13

Joint Permit Application Instructions 5-15

General Authorization Notification Instructions 5-26

Emergency Permit 5-28

Permit Waivers 5-29

Application Fees 5-29

Chapter 6: Processing the Removal-Fill Permit Application - 6-1

Chapter Overview

Intake and Initial Handling 6-2

Processing General Authorization Notifications 6-3

Processing Individual Permit and General Permit Applications 6-4

Term and Expiration of the Permit 6-15

Permit Renewal and Transfer 6-15

Modifying a Permit 6-18

Special Permitting Situations 6-19

Permit-Related Appeals 6-21

Chapter 7: Emergency Permits - Chapter Overview 7-1

What is an Emergency? 7-2

The Procedure for Obtaining an Emergency Permit 7-2

After the Emergency 7-6

Chapter 8: Compensatory Mitigation Planning for Aquatic Resources - 8-1

Chapter Overview

Evaluating Project Impacts 8-2

Selecting the Appropriate CM 8-2

Protocol for Eligibility and Mitigation Accounting 8-10

Special Considerations 8-23

Generating Credits at a New Mitigation Bank or In-Lieu Fee Site 8-26

Mitigation Scenarios 8-28

Chapter 9: Develop a Mitigation Plan – Overview 9-1

Introduction 9-2

Section 1: CM Plan Overview 9-4

Section 2: CM Site Ownership and Location Information 9-5

Section 3: Description of How the CM Addresses the Principal Objectives 9-5

Section 4: CM Existing Site Conditions 9-6

Section 5: Functions and Values Assessment 9-6

Section 6: CM Construction Maps and Drawings 9-7

Section 7: Monitoring Plan 9-8

Section 8: Long-term Protection and Financial Security Instruments 9-12

Other Requirements 9-15

CM for Linear Projects in Multiple Watersheds 9-16

Special Considerations for Eelgrass Bed Mitigation 9-16

Chapter 10: Monitoring the Compensatory Mitigation Site – 10-1

Chapter Overview

Purpose 10-2

Monitoring Methods 10-2

Data Analysis Standards 10-6

Monitoring Reports 10-7

Monitoring Duration 10-11

List of Appendices

Appendix A: Information Sources to Guide CM Site Selection

Appendix B: Cowardin and Hydrogeomorphic Wetland and Tidal Waters Classification

Appendix C: Suggested Outline for CM Plans Using Preservation

Appendix D: Optional Performance Standards Based on Targeted Functions

Appendix E: Preparing the Alternatives Analysis

Appendix F: Aquatic Resources of Special Concern

Appendix G: References

Acronyms Used in the Removal-Fill Guide

ARM Aquatic Resource Management (Division)

BLM Bureau of Land Management

BMP Best Management Practice

CM Compensatory Mitigation

CWM Compensatory Wetland Mitigation

Corps U.S. Army Corps of Engineers

DEM Digital Elevation Model

DEQ Department of Environmental Quality

DLCD Department of Land Conservation and Development

DSL Department of State Lands

EP Emergency Permit

EFU Exclusive Farm Use

EPA Environmental Protection Agency

ESA Endangered Species Act

ESH Essential (Indigenous Anadromous) Salmonid Habitat

FEMA Federal Emergency Management Administration

FPA Forest Practices Act

GA General Authorization

GIS Geographical Information System

GP General Permit

HGM Hydrogeomorphic (Method)

HMT Highest Measured Tide

ICCTA Interstate Commerce Commission Termination Act

IP Individual Permit

ILF In-Lieu-Fee

JPA Joint Permit Application

LiDAR Light Detection and Ranging

LLC Limited Liability Corporation

LWI Local Wetland Inventory

MLW Mean Low Water

MLLW Mean Lower Low Water

NAVD 88 North American Vertical Datum of 1988

NMFS National Marine Fisheries Service

NOAA National Oceanographic and Atmospheric Administration

NOS National Ocean Service

NPDES National Pollution Discharge Elimination System

NRCS Natural Resource Conservation Service

NWI National Wetlands Inventory

OAR Oregon Administrative Rule

ODF Oregon Department of Forestry

ODFW Oregon Department of Fish and Wildlife

ODOT Oregon Department of Transportation

OHW Ordinary High Water

OHWL Ordinary High-Water Line

vii

OPRD Oregon Parks and Recreation Department

ORS Oregon Revised Statute

ORWAP Oregon Rapid Wetland Assessment Protocol

OSMB Oregon State Marine Board

OSP Oregon State Police

OWRD Oregon Water Resources Department

PIL Payment-in-Lieu

PW Permit Waiver

PC Prior converted (cropland)

SWI Statewide Wetlands Inventory

SDAM Streamflow Duration Assessment Method

SHPO State Historic Preservation Office

SSW State Scenic Waterway

TAC Technical Advisory Committee

TMDL Total Maximum Daily Load

UGB Urban Growth Boundary

USFS United States Forestry Service

USFWS United States Fish and Wildlife Service

USGS United States Geological Survey

VEMA Vegetation Manager (software)

WRD Oregon Water Resources Department

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Chapter 1: Working with the Aquatic Resource Management

Program (ARM)

Chapter Overview

Organization of the Aquatic Resource Management Program

The Aquatic Resource Management Program (ARM) is made up of two units: The

Operations Unit (including removal-fill regulatory, proprietary, and jurisdictional disciplines)

and the Planning and Policy Unit. Staff duties and links to contact information are provided.

How the Aquatic Resource Management Program

Works with Other Entities

The ARM coordinates with numerous local, state, and federal agencies and other entities in

administering the removal-fill permit program and the state’s ownership of certain

waterways in Oregon.

Permit and Authorization-Related Services Provided by the Aquatic Resource

Management Program

The ARM provides a variety of services to support the removal-fill permit process including:

wetland determinations, wetland delineation report review, responding to wetland land use

notices, conducting pre-application meetings, providing assistance for permit application

processing, and program compliance. The ARM also administers the state’s ownership of certain

waterways in Oregon including the issuance of leases, licenses, easements, and registrations.

Wetland and Waterway Mitigation Grants

Grants are provided to construct state-sponsored mitigation projects related to the payment

in-lieu and in-lieu fee mitigation programs.

Requesting Public Records

Most records generated by DSL are public records and available upon request. Depending

on the extent of the request, there may be a fee.

Reporting a Suspected Violation

The ARM investigates complaints of alleged removal-fill violations and unauthorized use of

state-owned waterways. Certain information is essential to facilitate violation investigation

and handling.

Participating in Agency Improvements

Members of the public are invited to participate in a variety of efforts to improve the ARM.

Requesting Training or Speakers

Speakers and trainers are available for a variety of ARM-related topics.

Registering a Complaint or a Compliment

This section provides information on how to report a complaint related to ARM performance.

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Organization of the Aquatic Resource Management Program

DSL is organized into three program areas: Aquatic Resource Management, Common

School Fund Properties and Business Operations and Support Services. In addition,

DSL administers the South Slough National Estuarine Research Reserve (SSNERR) in

Charleston in partnership with NOAA. A more detailed description of the Department

can be found on the “About Us” page of the DSL website.

The mission of the Aquatic Resources Management Program (ARM) is to conserve,

restore, and protect the waters of this state and the ecosystem services they provide

through implementation of Oregon’s removal-fill and wetlands planning and

conservation laws. The ARM program also manages state-owned waterways to

preserve the public trust rights of navigation, fishing, and recreation.

The ARM implements its mission while allowing responsible, sustainable economic

development and exercise of private property interests. Waters are protected for their

contribution to aquatic life and habitats, fisheries, aquatic-based economies, public

recreation, navigation, commerce, water quality, floodwater storage, and other natural

resource functions and values.

The ARM is managed by a Deputy Director and is organized into two units: the

Operations Unit and the Planning and Policy Unit.

The Operations Unit

The Operations Unit implements the permit program for conducting removal-fill activities

in wetlands and waterways and the proprietary program for authorizing uses of state-

owned waterways. The Operations Unit is divided into two geographic regions: the

northern region (comprised of northwest and metro regional teams) and the southern

region (comprised of mid-west, southwest, and eastern regional teams). Each regional

team includes the following personnel:

• Aquatic Resource Coordinators are responsible for processing removal-fill

permit applications, handling complaints of unauthorized activities, and

compliance monitoring of permits.

• Proprietary Coordinators are responsible for processing and managing leases,

licenses, easements, and registrations for uses of state-owned waterways

• Jurisdictional Coordinators are responsible for reviewing wetland land use

notices, reviewing wetland delineation reports, and preparing jurisdictional

determinations.

Chapter 1: Working with the Aquatic Resource Management Program

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In addition, there is one Aquatic Resource Coordinator that serves as the Oregon

Department of Transportation liaison for state transportation removal-fill permits.

The directory of Operations staff can be found here.

The Planning and Policy Unit

The Planning and Policy unit develops aquatic resource management policies, provides

certain wetland planning services to communities, and provides technical specialist

services to support the work of the Operations Unit. It includes the following personnel:

• Wetlands Planner: Serves as the technical lead for wetland conservation planning

and protection programs. In coordination with the Aquatic Resource Specialist,

assists local and regional governments, state agencies, and federal agencies

developing wetland protection plans and programs.

• Mitigation Specialist-1: Serves as the technical expert and interdisciplinary

specialist to provide technical guidance to supervisors, staff, and peers from

other agencies on all subjects related to wetland and waterways ecology and

compensatory mitigation.

•

Mitigation Specialist-2: Serves as the agency lead on policy development,

implementation, and outreach on all subjects related to wetland and waterway

ecology and compensatory mitigation.

•

Aquatic Resource Specialist: Serves as the agency and state technical and

scientific expert on aquatic resources (e.g., wetlands and waterways). Duties

include, but are not limited to, aquatic resource delineation, management, and

regulation under the Oregon Removal-Fill Law.

•

Removal-Fill Specialist: Provides technical assistance to field operations staff

and promotes consistent interpretations in implementing the regulatory program.

•

Proprietary Specialist: Manages complex, multiagency projects within state-

owned waterways. Responds to complex technical questions concerning

waterway authorizations and other responsibilities of DSL in relation to the

management of state-owned waterways.

The directory of Planning and Policy staff can be found here.

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How the Aquatic Resource Management Program

Works with Other

Entities

The following sections provide a brief description of how the ARM coordinates with

other state, federal, and local agencies and consultants in administering removal-fill and

proprietary duties.

Working with Other State Agencies

Coordination with other state agencies in administering removal-fill and proprietary

duties is required under the agency’s State Agency Coordination Plan. In coordinating

with other state agencies, DSL is responsible for:

• Ensuring that state agencies have the opportunity to provide input on removal-fill

and proprietary applications

• Considering other agency recommendations for permit and authorization

decisions

• Incorporating other agency recommendations into permit and authorization

conditions

• Brokering resolution of conflicting requirements

• Soliciting input to resolve violations for unauthorized activities

Other state agencies routinely participate in the development of removal-fill and

proprietary improvements and rule revisions. Many state agencies also serve on the

Interagency Review Team (IRT) for mitigation banks. The following list provides a

description of how various state agencies interface with the ARM.

Oregon Department of Fish and Wildlife (ODFW)

ODFW serves as a consultant to DSL on all matters related to fish and wildlife habitat in

support of the ARM. In this capacity, ODFW:

• Provides input to DSL on permit applications and authorizations and resolution of

violations to reduce a proposed project’s impact to fish and wildlife habitat

• Developed the Oregon Guidelines for Timing of In-water Work, which are

incorporated into removal-fill permit conditions

• Administers fish passage requirements and fish passage plan reviews (this can

be required by ODFW even if there is no DSL permit)

• Issues scientific take permits generally associated with work-area isolation when

endangered fish are present in the waterway

• Issues in-water blasting permits

• Approves fish screening and bypass structures

• Serves on the IRT for mitigation banks

• Develops and implements the Oregon Habitat Conservation Strategy

• Serves as lead state agency on salmon recovery

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Oregon Department of Environmental Quality (DEQ)

DEQ serves as a consultant to DSL on all matters related to water quality. DEQ

provides the following services that support the ARM:

• Through its responsibility for the federal 401 water quality certification program,

DEQ reviews Clean Water Act permit applications for the Corps. DEQ may also

provide input to DSL on removal-fill permit applications about the potential water

quality effects of a proposed removal-fill project.

• DEQ issues stormwater (NPDES) permits that are frequently required for

removal-fill related activities.

• DEQ administers the Total Maximum Daily Load (TMDL) standards for water

quality, which are considered in the removal-fill permit process.

Oregon Department of Parks and Recreation (OPRD)

OPRD provides input within State Scenic Waterway (SSW) to the ARM:

• OPRD administers the State Scenic Waterways Act. For removal-fill activities in

state scenic waters (SSW), coordination with OPRD about project consistency

with the State Scenic Waterway Act is required

• OPRD administers the Ocean Shore permitting program for removal-fill activities

on the ocean shore.

Department of Land Conservation and Development (DLCD)

DLCD reviews proposed projects located in the coastal zone for consistency with the

federal Coastal Zone Management Act.

Oregon Water Resources Department (OWRD)

OWRD may review removal-fill applications for water storage or uses that may require a

water right from OWRD.

Oregon State Marine Board (OSMB)

If a proposed project involves a dock or other structure in the waterway, OSMB may

provide input to DSL to address boater safety requirements.

Oregon State Police (OSP) OSP may investigate unauthorized removal-fill activities for

potential criminal prosecution.

Working with Federal Agencies

Many projects in wetlands and waterways will require a federal Clean Water Act permit

from the Army Corps of Engineers. The Corps’ Portland District Office website provides

further information on the federal permitting requirements. While the Corps is

responsible for coordinating with other federal agencies, DSL also interacts with a

variety of federal agencies. The following list provides a brief summary of how DSL

coordinates with each federal agency.

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The Army Corps of Engineers

The Corps and DSL use a joint permit application for proposed removal-fill activities;

however, each agency independently reviews the application and issues its own permit.

The Corps and DSL coordinate by:

• Routinely sharing information and coordinating to resolve issues encountered

during the permit process for each agency

• Routinely sharing information to resolve violations for unauthorized activities and

non-compliance with permits

• Developing and implementing programmatic expedited permits

• Acting as co-chairs on IRTs for mitigation banks

• Resolving wetland boundary issues for specific sites

• Developing technical methods such as wetland functions and values

assessments, wetland delineations, and stream assessments

The Environmental Protection Agency (EPA)

The EPA is responsible for administering the Clean Water Act through the Corps.

However, EPA interfaces with the removal-fill program by:

• Providing input on removal-fill permit applications

• Handling enforcement for unauthorized activities subject to the Clean Water Act

and coordinating with DSL on joint enforcement actions

• Serving as a member of IRTs for mitigation banks

• Participating in the development of technical methods such as wetland functions

and values assessments, wetland delineations, and stream assessments

• Participating in the development and implementation of programmatic expedited

permit

The National Marine Fisheries Service (NMFS)

NMFS is responsible for administering the Endangered Species Act (ESA) for listed fish

species. Although the responsibility for coordination and consultation with NMFS rests

with the Corps, NMFS interfaces with the removal-fill program by:

• Conducting federal enforcement for unauthorized activities subject to the ESA

• Serving as a member of IRTs for mitigation banks if ESA species are involved

• Participating in the development of programmatic expedited permits if ESA

species are involved

The U.S. Fish and Wildlife Service (USFWS)

USFWS is responsible for administering the Endangered Species Act (ESA) for plants

and animals. Although the responsibility for coordination and

consultation with USFWS rests with the Corps, the USFWS interfaces with the removal-

fill program by:

• Routinely serving as a member of IRTs for mitigation banks if ESA species are

involved

• Participating in the development of programmatic expedited permits if ESA

species are involved

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Working with the Tribes

The government-to-government policy of DSL was originally established in 1998 in

response to Governor’s Executive Order EO-96-30 on state/tribal relations. This policy

commits DSL to:

• Include affected Tribal interests in the review of agency actions likely to affect

tribal members or resources of Tribal interest

•

Thoughtfully consider Tribal comments concerning pending decisions and actions

• Provide materials to each Tribal government that explain DSL’s

roles and responsibilities in natural resource management

In furtherance of this policy, the ARM makes available to each potentially affected Tribe

a copy of removal-fill and proprietary applications during the public review period. The

Tribes are given the opportunity to comment on the proposed activities set forth in the

applications, and staff work closely with Tribal staff to address any concerns they may

have. In addition, ARM management participates in Cultural Resources and Natural

Resources Workgroup meetings to share information with the Tribes on DSL’s activities

related to natural resource management.

Working with Local Governments

To ensure land use compatibility with permit actions, DSL works with city and county

governments in the following ways:

• Jurisdictional coordinators provide input to local government on land use

applications that may involve work in wetlands and waterways through the

Wetland Land Use Notification program.

• The Wetlands Planner provides technical assistance to local government with

their Goal 5 (Natural Resources) requirements including development of local

wetland inventories and local ordinances implementing wetland and waterway

protections.

• Proprietary coordinators and aquatic resource coordinators consult with local

governments during the proprietary and removal-fill application processes to

ensure that projects are consistent with local comprehensive plan and zoning

ordinances and local wetland and waterway protection ordinances, where

applicable.

Working with Watershed Councils and Soil and Water Conservation

Districts

DSL works with councils and districts to facilitate voluntary restoration activities and

collaborate on specific permit actions. These two organizations:

• Provide technical assistance to applicants

• Provide watershed specific information to DSL

• May comment on removal-fill and proprietary applications

• Conduct voluntary restoration activities

•

Obtain grants from the DSL mitigation fund

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Working with Environmental Justice Communities and the

Environmental Justice

Task Force

Environmental justice (EJ) is equal protection from environmental and health hazards,

and meaningful public participation in decisions that affect the environment in which

people live, work, learn, practice spirituality, and play. "Environmental justice

communities" include minority and low-income communities, tribal communities, and

other communities traditionally underrepresented in public processes. In response to

the need for equal protection for all Oregonians, the Oregon Legislature created the

Environmental Justice Task Force (EJTF) to protect minority and low-income

populations from disproportionate environmental impacts. DSL is a participating natural

resource agency in the task force and has an active representative to the EJTF. The

agency seeks to provide all interested people with knowledge of and access to decision-

making that affects Oregon’s waters and the communities connected to them. The

development of EJ tools such as the EJTF Best Practices Handbook and the EPA-

constructed geospatial tool EJSCREEN, are improving the agency’s ability to identify EJ

communities and ensure meaningful public participation.

Working with Consultants

Applicants for removal-fill permits typically hire

consultants to prepare wetland delineation reports,

removal-fill permit applications, mitigation plans, and

monitoring reports. DSL cannot recommend

consultants, but there are resources on the DSL

Waterways & Wetlands web pages to help:

Wetlands in Oregon and Consultant Summary.

ARM staff work closely with consultants in a variety of ways by:

•

Providing technical and regulatory

updates

• Participating and collaborating with consultants in professional forums (e.g.,

Society of Wetland Scientists)

• Reviewing wetland delineation reports and site visits

• Conducting pre-application meetings and site visits

• Negotiating permit conditions

• Reviewing consultant monitoring reports and conducting site visits

Consultants may be designated to

act as authorized agents for permit

applications and enforcement cases.

DSL will then communicate directly

with the consultant regarding the

technical aspects of the project,

however, all formal agency

correspondence will still be addressed

to the applicant or responsible party.

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Permit and Authorization-Related Services Provided by the Aquatic

Resource Management Program

Wetland Determinations

This free service provides landowners with information about the likelihood of wetlands

or waterways on their property. This service requires submittal of a wetland

determination request form which is reviewed by a Jurisdictional Coordinator. Wetland

determinations are primarily performed in the office and occasionally may be conducted

onsite. These determinations, if conducted without a site visit, are a screening tool for

identifying the likely presence of wetlands. They are not conclusive in determining the

absence of wetlands. DSL’s response may also specify if a wetland delineation is

needed and if identified wetlands or waterways are subject to removal-fill permit

requirements.

Review of Wetland Delineation Reports

Wetland delineations (determining the boundary of a wetland) are conducted by wetland

consultants hired by property owners and approved by Jurisdictional Coordinators. A

wetland delineation report contains the methods, data, conclusions, and maps and

figures that identify wetland and waterway boundaries. Specific information about the

methods, report format, and requirements is on the DSL website.

DSL will complete an initial review of a wetland delineation

report within 120 days of receipt of the report and the review

fee. If the report meets the standards defined by

Administrative Rule 141-090, DSL approves the report. DSL

staff may request additional or clarifying information and/or

conduct an onsite inspection. DSL will write a concurrence,

with an attached DSL approved wetland delineation map.

The concurrence is valid for up to five years.

If requested, DSL may, under certain circumstances,

reissue the concurrence one time. The reissued concurrence is valid for up to an

additional five years of the original expiration date. Specific information about the

requirements is on the DSL website.

The wetland delineation report review status can be checked on the DSL website.

Review of Wetland Land Use Notices

The wetland land use notice process is a free service provided to city and county

planning departments and performed by a Jurisdictional Coordinator. Cities and

counties are required by law to submit a Wetland Land Use Notification Form to DSL

within five days of receiving a local land use application if an activity is proposed on a

Delineation Report Timing

Given the time necessary for

the consultant to conduct field

work and prepare the report,

and the time necessary for

DSL to review and approve

the report, applicants need to

plan for this work well in

advance of the removal-fill

permit application process.

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parcel that has wetlands or waterways identified on the National Wetlands Inventory,

Statewide Inventory, or applicable Local Wetlands Inventory maps.

The purpose of this notice process is to provide notification to landowners about the

need for a removal-fill permit and prevent unintentional violations of the Removal-Fill

Law.

Some common local land use actions that prompt a Wetland Land Use Notice are

grading permits, conditional use permits, land partitions, planned unit developments,

and building permits for new structures.

Within 30 days of receipt of a wetland land use notice, DSL will respond to the local

planning department, the applicant, and the landowner. The response will indicate the

likelihood of wetlands or waterways on the project site. If wetlands are present or likely

to be present, DSL will indicate that a wetland delineation study and/or a removal-fill

permit will be necessary.

Removal-Fill Permit Assistance

Aquatic Resource Coordinators are available to advise property owners and project

proponents on matters relating to the removal-fill permit process such as:

• The types of wetlands and waterways that are subject to removal-fill permit

requirements

• Activities that are subject to removal-fill permit requirements and exemptions that

may apply

•

Removal-fill permit application requirements, processing steps and timelines

• Other agencies that may require a permit or otherwise need involvement in the

project

•

Resources for further information

Pre-application Meetings

As resources allow, Aquatic Resource Coordinators are available to meet with

applicants at the project site or in an office setting to discuss a proposed project prior to

preparation of the removal-fill permit application. The pre-application meeting provides

a good opportunity for DSL staff to become familiar with the project and can help avoid

costly project design changes. It also provides an opportunity for all parties to gain

information to assist the applicant through the application process. Pre-application

meetings are further discussed in Chapter 4: Planning Ahead.

Proprietary Authorization Assistance

Proprietary Coordinators are available to advise property owners and project

proponents on matters relating to the state’s ownership of certain waterways such as:

• Those waterways that are subject to proprietary authorization requirements

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• Activities that are subject to proprietary authorization and the types of

authorizations available

•

Application requirements, processing steps and timelines

•

Resources for further information

Wetland and Waterway Mitigation Grants

The ARM administers a grant program for constructing mitigation sites for the payment-

in-lieu and in-lieu fee mitigation programs. In some circumstances, applicants for

removal-fill permits have an option to pay money to the mitigation fund. DSL uses this

money to generate mitigation credits to fulfill the mitigation obligation.

Generally, grants are provided for projects that:

• Provide ecological improvements to generate mitigation credits to offset losses to

wetland or waterway functions

• Are located in areas where DSL currently or expects to have a mitigation

obligation

•

Are not conducted for profit

•

May have a variety of partners with an interest in voluntary restoration

Requesting Public Records

DSL is required by law to maintain public records that are available upon request. There

are two ways to review and obtain copies of public records:

• Make an appointment with the Public Records Coordinator to come into the DSL

office and review files. The reviewer will then make copies for a fee.

• Submit a Public Record Request Form to the Department for staff to collect and

copy relevant materials.

There are fees associated with researching, gathering, copying, and posting, mailing, or

faxing requested documents. If DSL requires legal advice to fulfill your request, a fee

may be charged for that time as well. Before conducting any fee-related service for a

public records request, DSL will notify the requestor of the estimated fees.

Reporting a Suspected Violation

Complaints of a suspected violation of the Removal-Fill Law are made by contacting the

Aquatic Resource Coordinator assigned to that county. Complaints can be made by

phone, mail, fax, or e-mail.

Supplying complaint information: The ability of DSL to respond effectively to a

suspected violation is directly related to the accuracy of the information provided in the

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initial contact. When contacting DSL about a suspected removal-fill violation, the

following information should be provided:

• The location (address, intersection or legal description of the tax lot). An aerial

photo (e.g., Google Earth image) or coordinates of the activity would also help

identify the location.

• Property owner’s or other responsible party’s name and contact information, if

known

•

The name of the waterway involved, if applicable

•

A description of the activity, including equipment used

• The date the activity started and ended. If ongoing, the date the activity was last

witnessed

• Any other information that could further identify the responsible party, such as

names on trucks, fill wanted signs, for sale signs, etc.

• Approximate dimensions or volume of material being put into, or taken out of, the

wetland or waterway

• Photos of the site and activity if such can be obtained without trespassing

What complainants should expect after a complaint is filed: DSL investigates all

complaints that are received. The time required to confirm a violation is dependent on

staff resources and the nature of the alleged activity. To confirm a violation, DSL must

have verifiable evidence and clearly establish all of the following:

• The activity involved a regulated water of the state

•

The volume thresholds were exceeded

• The activity was not exempt from permit requirements

• The activity did not have DSL authorization, or

• The activity did not comply with a DSL authorization

Circumstances that generally result in DSL’s inability to confirm a violation are when:

• The activity lacks verifiable evidence due to passage of time

• The activity is clearly outside the authority of the Removal-Fill Law. Commonly

reported activities that are outside the authority of the Removal-Fill Law include

vegetation removal, directing water onto someone else’s property and trespass.

•

Sufficient information related to the location of the activity is not provided

• The activity and impacts are too minor to confirm the volume thresholds. In these

cases, DSL may simply issue a warning letter.

Generally, DSL does not report back to the complainant on the outcome of a suspected

violation. Complainants may call the Aquatic Resource Coordinator to inquire about the

status or outcome of a violation. The following should be kept in mind when a violation

has occurred:

• DSL handles most cases through administrative enforcement procedures and in

only rare cases may refer criminal proceedings to OSP. The administrative

remedies allow for considerable discretion and flexibility so that cooperative

agreements may be reached to resolve violations.

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• It can take substantial time to resolve violations depending on the nature of the

action, the cooperation of the responsible party and the options for resolution. It

is the goal of DSL to have a final resolution in place within 12 months of the

complaint.

• DSL is committed to protecting the rights of alleged violators and makes every

effort to ensure that alleged violators are aware of, and have access to, due

process.

Participating in Agency Improvements

Members of the public and other agencies that are interested in participating in ARM

improvements can do so by:

•

Providing input on rule making

• Completing customer service surveys when available

• Staying informed. Interested parties can get updates on DSL activities and

events by reading the DSL e-newsletter published quarterly.

• Contacting the ARM Management Team. For special problems or suggestions for

program improvements, any member of the ARM Management Team can be

contacted directly.

Requesting Training or Speakers

Upon request, DSL can provide training and presentations related to the removal-fill and

proprietary programs, wetland planning, and identifying state-owned waterways and

regulated waters to groups. Frequently requested training and presentation topics

include:

• The removal-fill permit process

• State-owned waterways and the proprietary authorization process

•

Voluntary restoration permitting

• Compensatory mitigation

•

Mitigation banking

•

The wetland grant program

• Road and transportation-related permitting

• Training on technical methods such as wetland assessments, stream

assessments, and monitoring methods

Request A Speaker or Trainer

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Registering a Complaint or Compliment

There are times when members of the public or other agencies wish to register a

complaint or compliment regarding the ARM. These issues can be related to:

• Accommodating or unfair treatment

•

Upstanding or unprofessional behavior by ARM employees

•

Exceptionally fast or untimely responses

•

Positive or negative comments regarding agency procedures or policies

•

Statute or rule interpretation

To register a complaint or compliment, it is recommended that the appropriate member

of the ARM Management Team be contacted.

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Chapter 2: When is a Permit Required?

Chapter Overview

Oregon’s Removal-Fill Law (ORS 196.795-990) requires any person who plans to “remove

or fill” material within “waters of this state” to obtain a permit from DSL. There is one

exception, permitting on the ocean shore between extreme low tide and the vegetation line

is administered by Oregon Parks and Recreation Department.

Waters of this State: Types of Jurisdictional Waters and their Boundaries

Type of “Water of the State”

Jurisdictional Limit

Pacific Ocean

Extreme low tide to 3 miles out

Tidal Bays, Tidal Rivers, and Estuaries

Highest Measured Tide (HMT) or upper edge of

wetland

Rivers, Perennial Streams, Lakes and

Ponds

Ordinary High Water (OHW)

Intermittent Streams

OHW

Wetlands

Wetland boundary

Artificially Created Ponds and Ditches

OHW

Artificially Created Wetlands

Wetland boundary

Reservoirs

Normal operating pool level or upper edge of

adjacent wetland

Highest Measured Tide (HMT) is determined by using tidal station data, installing a tidal

gage on site, or by using field indicators. Ordinary High Water (OHW) is determined by

direct observation of an annual event, gauge data or field indicators. The wetland

delineation method adopted by the Corps is used to determine wetland boundaries.

Definition of Removal and Fill

Removal means taking inorganic substances (rock, gravel, sand, silt, etc.) and large woody

debris; or their movement by artificial means within waters of this state, including channel

relocation. Fill means the deposit by artificial means of any material (organic or inorganic) at

any one location.

Removal-Fill Volume Thresholds

For many waters of this state, a permit is required if a project will involve 50 cubic yards of

fill and/or removal (cumulative) within the jurisdictional boundary. For activities in ESH

streams, State Scenic Waterways and compensatory mitigation sites, a permit is required

for any amount of removal or fill. Removal is calculated on an annual basis. Fill is calculated

on a cumulative basis.

Calculating Removal-fill Volumes

Guidance and examples for calculating removal-fill volumes are provided.

Special Situations: Activities that Cannot Be Permitted By L

Exploration for minerals within the territorial sea and navigable bays and fill in Smith or

Bybee Lakes are prohibited by statute.

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Oregon’s Removal-Fill Law (ORS 196.795-990) requires any person who plans to

“remove or fill” material in “waters of this state” to obtain a permit from DSL. As noted

below, the one exception is that permitting on the ocean shore is administered by

Oregon Parks and Recreation Department. In determining whether a permit is required

for a proposed activity, DSL must determine all of the following:

• The activity is proposed in a water of the state (i.e., a jurisdictional waterway or

wetland)

• The activity meets the definition of removal or fill

• The activity is not exempt

Waters of This State - Types of Jurisdictional Waters and Their

Boundaries

Waters of this state include the jurisdictional portions of

the Pacific Ocean, tidal bays, tidal rivers, estuaries,

non-tidal rivers, perennial and intermittent streams,

lakes, ponds, wetlands, and reservoirs. In addition,

certain ditches and created wetlands and ponds are

also considered waters of this state. This section

outlines the different types of waters of this state and

provides guidance on what portion of those waters are

jurisdictional.

The Pacific Ocean

DSL regulates removal-fill activities between extreme low-tide elevation seaward three

statutory miles into the Pacific Ocean (the Territorial Sea). Note this does not include

the ocean shore, which is defined as the area between extreme low tide (lowest

estimated tide) and the “line of statutory vegetation” or “actual vegetation line”

whichever is further inland (Figure 2-1). OPRD regulates earthwork on the ocean shore

through the Ocean Shore Permit Program.

The statutory vegetation line is the line described according to the Oregon Coordinate

System and set forth in ORS 390.770. The line consists of a series of connected line

segments. The "actual vegetation line" means the extreme seaward boundary of

natural, non-aquatic vegetation. It is a visible boundary, marking the border between the

dry sand beach and the adjoining upland. Seasonal occurrences or isolated patches of

vegetation may lie seaward of the actual vegetation line.

The extreme low tide elevation is the lowest estimated tide that can occur in a given

year. This line can change from year to year and does not have a fixed elevation. For

Chapter 2: When is a Permit Required?

The Legislature charged DSL with

determining “waters of this state”

and their boundaries to implement

the Removal-Fill Law. This is done

through a formal jurisdictional

determination. Since only DSL has

the authority to make jurisdictional

determinations, it is important to get

concurrence from the Department

prior to starting any work in

waterways or wetlands.

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this reason, it is best to contact a Jurisdictional Coordinator or an Aquatic Resource

Coordinator to determine the elevation of extreme low tide for a specific project.

Figure 2-1: Jurisdiction of the Pacific Ocean and the beach (between extreme low

tide and upland).

Tidal Bays, Tidal Rivers, and Estuaries

A waterway is considered tidal if it is located below the

head of tide. The head of tide is the farthest point

upstream where a waterway is affected by tidal

fluctuations. The head of tide is established for coastal

rivers and streams and maps are located in the

publication, Heads of Tide for Coastal Streams in

Oregon. Although the Columbia River’s actual head of

tide is located at Bonneville Dam, 146 river miles upstream from its mouth, the western

edge of Puget Island around River Mile 38 has been designated as the end of the

estuary for the purposes of the Removal-Fill Law. For GIS users, a shape file titled

‘Head of Tide Locations for Coastal Streams in Oregon’ has been created from this

document and may be downloaded from the Oregon Coastal Atlas.

If the subject waterway is not listed in the heads of tide document, then, ideally, a site

visit should be made during a high tide when the moon is full or new (‘spring tide’) in the

winter to determine if a water is tidal. NOAA’s website has predictions of high tide times

Basic information on tides is

found in the Estuary Assessment

chapter of Oregon Watershed

Enhancement Board’s Watershed

Assessment Manual.

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for the station closest to the waterway in question. If it is not practical to visit the

waterway during a winter high spring tide, then the site should be visited during a spring

tide and the timing of the observation should be interpreted in the context of the tidal

cycle.

Tidal bays and estuaries are jurisdictional below the elevation of highest measured tide

(HMT) or to the wetland boundary, whichever is higher, as illustrated in Figure 2-2. The

HMT is defined as the “highest tide projected from actual observations within an estuary

or tidal bay.”

Figure 2-2: Jurisdictional boundary in waters subject to the tide.

The HMT elevation on a parcel may be determined by a land survey referenced to the

closest tidal benchmark based on the most recent tidal epoch and reference to both the

tidal datum (MLLW) and the fixed geodetic datum (NAVD88). In lieu of surveyed

elevations, subject to approval by DSL, HMT elevation may be based upon actual tide

gauge measurements during a wintertime spring tide or observation of the highest of the

field indicators. These methods are outlined below.

Using Tidal Station Data

Tidal elevation data is on the NOAA’s National Ocean Service

website. The closest station to the subject property should be used

to derive the elevation of the highest water level recorded. Because

this water level is usually referenced to the station datum, it will

need to be converted to the geodetic datum NAVD88. Once the

highest water level elevation is identified and converted to geodetic datum NAVD88, it

can be used to identify the HMT on the property through a topographic survey. A more

complete description of how to use tidal data to determine HMT, plus a compilation of

HMT data from various stations, is available from DSL.

More information on

tidal and geodetic

datums is available

on NOAA’s Web site.

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Installing Tidal Gages On-Site

Installing a tidal gage on the property for a winter tide cycle is a more accurate way to

determine HMT. Caution should be exercised in applying this option because data

collected during the winter tide cycle may not be representative of a typical tide cycle.

Applicants seeking to pursue this option should consult with DSL before installation.

Using Field Indicators

At the discretion of DSL, field indicators may be used to determine HMT. The highest of

the following field indicators can be used to determine the elevation of HMT. Examples

of field indicators include:

• The uppermost drift or wrack (or debris) line containing small driftwood, mats of

filamentous algae (algae that form long visible chains, threads, or filaments that

intertwine forming a mat), seaweeds, sea grasses, pieces of bulrush or other

emergent vascular plants, Styrofoam or other buoyant plastic debris, bivalve

shells, crab molts, or other aquatic invertebrate remains

• The uppermost water mark line on an eroding bank

• The uppermost water mark line (e.g., discoloration; sediment, barnacles, snails,

or algae growth) visible on a hard shoreline or bank consisting of bedrock,

boulders, cobbles, riprap or a seawall

• The uppermost intertidal zone inhabited by a community of barnacles, limpets,

and littorine snails along shorelines composed of bedrock, riprap, boulders

and/or cobble

• The uppermost tidal marsh/upland boundary, as indicated by a dominant plant

community characteristic of saltwater, brackish, or freshwater tidal plant

communities changing to a dominant plant community typical of uplands

• The intertidal/upland boundary along sandy shores as indicated by the

appearance of a distinct dune plant community

These field indicators are often not observable in the upper riverine portion of an

estuary, in which case a topographic survey is required.

Non-tidal Rivers, Intermittent and Perennial Streams, Lakes, and Ponds

Rivers and perennial streams have continuous flow in parts of their bed all year long

during years of normal precipitation. Intermittent streams flow a portion of every year

(see more details below). Lakes and ponds are bodies of standing water in depressions

Areas behind dikes and tide gates may require additional evaluation to determine if there are

jurisdictional waters and the type of water (tidal or non-tidal). If the subject area is separated from

tidal influence by a properly functioning dike or a tide gate, the area behind the dike should be

assessed for wetlands. Also, channels present on the site may be jurisdictional either to OHW or

HMT (if tidal). If there is no tidal influence upstream of a tide gate and the area behind the dike

does not meet wetland criteria, channels below OHW may be the only regulated feature.

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of land or within expanded portions of streams. Rivers, perennial and intermittent

streams, lakes, ponds, and jurisdictional ditches are jurisdictional to the ordinary high

water (OHW) line, meaning the line on the bank or shore to which the high water

ordinarily rises. The OHW line excludes exceptionally high water levels caused by large

flood events (e.g., 100-year events).

Three methods are used to identify OHW: using field indicators, determining bankfull

stage using local gage data, and directly observing an annual high water event. These

methods can be used individually or in combination. The choice

should be based on best professional judgment. However, often

the most practical approach is to first look for field indicators

because local gage data is not always available and direct

observation is often difficult to schedule.

Field indicators of OHW include:

• Clear, natural line impressed on the shore, including scour, shelving and

exposed roots

• Change in plant community from riparian (e.g., willows) to upland (e.g., oak, fir)

dominated. If the area is cropped, hydrophytic plants, or evidence of crop stress

or damage from high flows would be indicative of high water.

• Textural change of depositional sediment or changes in the character of the soil

(e.g., from sand, sand and cobble, cobble and gravel to upland soils). Sediments

may appear stratified. This indicator may require careful evaluation on floodplains

where certain farming practices regularly disturb the soil profile.

• Elevation below which no fine debris (needles, leaves, cones, seeds, soil organic

matter) occurs

• Presence of water-borne litter and debris, wrack accumulation, water-stained

leaves, water lines on tree trunks, flattened vegetation. Certain farming practices

can obscure these indicators.

Documentation of field indicators should include a map that clearly shows the location

and extent of the river, stream, lake, pond, or jurisdictional ditch; and a brief written

report with ground level color photographs describing and showing the indicator(s)

observed.

Determining bankfull stage: The following documents provide examples of how

hydrologic data can be used to estimate OHW:

• A Field Guide to the Identification of the Ordinary High Water Mark in the Arid

West Region of the Western United States

• Determining the Ordinary High Water Mark on Streams in Washington State

Documentation of bankfull determinations should include a map that clearly shows the

location and extent of the stream, lake, or pond; and a brief written report providing the

gage data and describing the analysis method used to make the determination.

Bankfull stage is

defined as the two-year

recurrence interval flood

elevation.

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Direct observation of a high water event during a year of normal precipitation may

also be used to determine OHW. The date chosen for the observation should be based

on local knowledge or by estimating the likelihood of an event occurring using

hydrologic data.

Documentation of annual high water events should include a map that clearly shows the

location and extent of the stream, lake, pond, or jurisdictional ditch on the day of the

observation; and a brief written report that includes precipitation data and ground level

color photographs to support the line drawn.

Sources of additional evidence to support OHW determinations include:

• Aerial photographs of the site (current and historic) from late winter and early

spring are useful for identifying annual high water events. False-color infrared

aerial photography will help differentiate between contrasting patterns of

vegetation associated with active floodplains and drier terraces, and stereo pairs

of aerial photographs show site topography.

• Light Detection and Ranging (LiDAR) or Shaded Relief Digital Elevation Model

(DEM) data often show topographic features associated with OHW.

• County soil survey maps (including accompanying soil descriptions) and FEMA

floodplain maps can help identify active floodplains.

Intermittent Streams

An intermittent stream is defined in statute as “any stream that flows during a portion of

every year and which provides spawning, rearing, or food-producing areas for food and

game fish” (ORS 196.800). In other words, an intermittent stream is a stream which

flows during a portion of every year and which provides one or

more of the following:

• Spawning areas for at least one species of food fish and

one species of game fish

• Rearing areas for at least one species of food fish and

one species of game fish

• Food-producing areas for at least one species of food

fish and one species of game fish

In contrast, ephemeral streams flow only during or immediately after storm events.

Streams typically begin as ephemeral, transition to intermittent, and then become

perennial. However, some streams, particularly on the east side of Oregon, may flow

into closed basins, may become ephemeral downstream or may even disappear.

Generally, if an intermittent stream is identified on the National Hydrography Dataset or

USGS quad map, it is an indication that the stream is at least intermittent by DSL

standards. However, if jurisdiction is otherwise unclear or disputed, additional

information may be necessary to determine whether a stream is intermittent.

• Visual observations or hydrology data during years of normal precipitation may

indicate that the stream flows during a portion of every year.

Intermittent streams are

jurisdictional to the elevation

of OHW. A DSL jurisdictional

determination applies only to

the portion of the stream

where the removal-fill activity

is proposed or has occurred.

2-8

• Consultation with ODFW or StreamNet may confirm whether the stream segment

contains spawning or rearing areas for food fish and game fish. (Note: StreamNet

may not always reflect the most accurate mapping of waterways containing

spawning or rearing areas for food fish and game fish.

• If confirmation of spawning or rearing areas for food and game fish is not

possible, then determining whether the stream segment is a food producing area

will be necessary. Generally this occurs when the flow is of sufficient duration to

support amphibians and aquatic insects, and provide other food web support

mechanisms, such as conveyance of particulate organic matter. The Streamflow

Duration Assessment Method (SDAM) may be applied to see if the stream

segment has sufficient flow to provide food or food web support. SDAM is not

required to make stream flow duration determinations. The method was designed

to be an assessment tool and should support, not replace best professional

judgment. To be intermittent, at least one food fish and one game fish must be

present downstream or the stream must be a tributary to a stream with the fish

present. Consultation with ODFW or StreamNet may be required to determine

this fish presence.

Wetlands

Wetlands are areas that are inundated or saturated by surface or ground water at a

frequency and duration sufficient to support, and under normal circumstances do

support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

Wetlands are jurisdictional within the wetland boundary.

A wetland boundary is delineated and mapped according to the Wetlands Delineation

Manual; Western Mountains, Valleys, and Coast Region; and Arid West Region

developed by the Corps. Wetland delineation reports are prepared by wetland

consultants and submitted to DSL for review and approval (jurisdictional determination).

Jurisdictional determinations for wetlands are valid for a period of five years unless new

information necessitates a revision. In comment below:

Reservoirs

A reservoir is a natural or artificial pond or lake used for storing and regulating water.

Reservoirs are jurisdictional to the normal operating pool level (sometimes called the

full-pool elevation), or to the upper edge of an adjacent wetland, whichever is higher.

In most cases, the normal operating pool level of a reservoir coincides with a very clear

line on the bank around the reservoir where the vegetation, slope and soil

characteristics change dramatically. Indicators of this line are similar to the OHW line

Jurisdiction over compensatory mitigation sites: Mitigation sites that are referenced in a

removal-fill authorization are jurisdictional for the entire area of the mitigation site, as shown in

the authorization, including any upland buffers. Any amount of removal or fill within mitigation

sites requires a permit. To determine whether there is a compensatory mitigation site at a project

location, contact DSL.

2-9

indicators for streams and rivers. For larger reservoirs, the applicant may want to verify

the elevation of this line with elevation data from the entity that manages the reservoir

(the Corps, an electric company, or a local irrigation or water management district).

Artificially Created Ponds and Wetlands

Artificially created ponds and wetlands are waters that exist as a result of some human

activity. They are jurisdictional if they meet any one of the following criteria (other than

the exceptions listed below):

• Greater than or equal to one acre in size (unless created for one of the purposes

listed below)

• Created, in part or in whole, in waters of this state

• Identified in an authorization as a mitigation site

Artificially created ponds and wetlands of any size that are created entirely from uplands

are not jurisdictional if created for the purpose of:

• Wastewater treatment

• Settling of sediment

• Stormwater detention or treatment

• Agricultural crop irrigation or stock watering

• Fire suppression

• Cooling water

• Surface mining

• Log storage

• Aesthetic purposes

To determine whether a wetland or pond was “created in part or in whole in a water of

this state”, the applicant should use the following resources to research the historical

site conditions. Generally, if any of the following situations exist in any portion of the

created wetland or pond, it was likely created in part or wholly in a water of this state:

• The USGS map shows a channel flowing through, into, or out of the artificially

created pond or wetland

• Historical aerial photos show a water body, inundation, or an area devoid of

vegetation in early spring

• NWI or LWI maps show a wetland identified at the site

• Hydric soils maps from the county Soil Survey show that the site is mapped as a

hydric soil unit, or is in a low topographic position in a soil unit with hydric soil

inclusions

• There are springs, seeps or wetlands upslope of the site, or a channel flowing

into the site

Legally constructed ponds that are

artificially created and are severed from

interaction with the surrounding

environment by an impermeable liner

are not jurisdictional.

When an existing jurisdictional pond, wetland, or waterway is enlarged through artificial

means, such as redirection of water or excavation, the additional area is included in the

jurisdictional boundary.

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Following are some examples of jurisdictional artificially created ponds and wetlands:

• A flood-irrigated pasture that meets wetland criteria, greater than one acre,

where no wetland or waterway existed on the site prior to flooding

• A wetland caused by water backing up behind an undersized culvert in a stream

• A two-acre wildlife pond created by construction of a berm or excavation of

material in a non-jurisdictional drainage

Figure 2-3 provides a step-by-step procedure for how to determine if an artificially

created wetland or pond is jurisdictional.

Figure 2-3: Jurisdiction flowchart for artificially created ponds and wetlands.

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Ditches

A ditch is a manmade water conveyance channel. Channelized or straightened natural

waterways are not considered ditches. If the channelized waterway is shown as an

intermittent or perennial stream on a USGS map, it is likely not a ditch, but a

channelized stream. Likewise, if historical aerials show the waterway in a different

location, it is likely a channelized stream.

Ditches created in wetlands are jurisdictional (with the exception of some irrigation

ditches and roadside and railroad ditches as described below).

Ditches created in uplands are jurisdictional if they meet both of the following:

• Have a free and open connection to a waterway: A “free and open connection”

means a connection by any means, including but not limited to culverts, to or

between natural waters that allows the interchange of surface flow at bankfull

stage (the two-year recurrence interval flood elevation) or OHW, or at or below

HMT between tidal waterways.

• Contain food and game fish: Because the list of food fish includes almost any fish

(there is no list available), and the ditch must have both to be jurisdictional, the

game fish list (ORS 496.009) is used to establish jurisdiction. Ditches created

from upland that have fish screens are generally not jurisdictional.

Figure 2-4: Jurisdiction flowchart for ditches.

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Irrigation Ditches

Regardless of whether it was created in wetlands or uplands, an irrigation ditch is not

jurisdictional if it meets both of the following:

• The ditch is operated and maintained for the primary purpose of irrigation.

• The ditch is dewatered for the non-irrigation season except for isolated puddles

in low areas. “Dewatered” means that the source of the irrigation water is turned

off or diverted from the irrigation ditch. A ditch that is dewatered during the non-

irrigation season may be used for temporary flows associated with stormwater

collection, stock water runs, or fire suppression.

Roadside and Railroad Ditches

Regardless of whether it was created in wetlands or uplands, a roadside or railroad

ditch is not jurisdictional if it meets all of the following:

• It is ten feet wide (average) or less at OHW or the wetland boundary

• It is not adjacent and connected or contiguous to wetlands. (If so, only the portion

that is connected or contiguous with the wetland is jurisdictional.)

• It does not contain fish

Note that a roadside ditch is always jurisdictional if it is a channelized stream, or if it has

a free and open connection to another water and contains food and game fish.

Figure 2-5 illustrates a portion of a roadside ditch that is jurisdictional because it is

adjacent to a wetland. (A ditch may be considered adjacent to a wetland even if there is

an upland berm between the ditch and the wetland.)

Figure 2-5: Jurisdiction of a roadside ditch with adjacent wetlands.

If an applicant is uncertain about whether a ditch is jurisdictional, he or she should

contact a Jurisdictional Coordinator or Aquatic Resource Coordinator. Figure 2-4 may

also help to determine whether a ditch is jurisdictional.

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Definition of Removal and Fill

Definition of Removal

As stated in statute and rule:

"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 Essential Salmonid Habitat areas

and State Scenic Waterways, the 50-cubic-yard minimum threshold does not apply.”

In other words, removal involves:

• More than 50 cubic yards (except in State

Scenic Waterways, ESH streams, or mitigation

sites where the threshold is zero)

• Inorganic material and large woody debris

• Either taking material from the bed and/or

banks or “movement” of material within the

bed and banks

Examples of removal are digging a ditch through a wetland, excavating a foundation in

a wetland, or dredging to remove sediment from a waterway. Examples of movement

are plowing in a wetland or moving gravel around in a stream.

Note that the term “removal” includes large woody debris. Per statute (ORS 198.800),

“large woody debris” means any naturally downed wood that captures gravel, provides

stream stability, or provides fish habitat, or any wood placed into waters of this state as

part of a habitat improvement or conservation project.

“Channel relocation” means to

change the location of a channel. If

more than 50 cubic yards of

material is removed in moving the

channel or if it would require more

than 50 cubic yards of material to

completely fill the old channel, a

permit is required.

Movement may include disturbance of the substrate or other inorganic materials associated

with embedded organic materials such as salvage logs, wood piling, log jams and beaver dams.

While, other than Large Woody Debris, removal of the organic material is not regulated,

disturbance of the associated inorganic material may be considered movement.

“By artificial means” is the purposeful movement or placement of material by humans and/or

their machines.

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Definition of Fill

As stated in statute and rule:

"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

ESH areas and in State Scenic Waterways, fill means any deposit by artificial means.”

In other words, fill involves:

• Equal to or greater than 50 cubic yards, except in State Scenic Waterways, ESH

areas, mitigation sites, or if the project is for an Ocean Renewable Energy

Facility where the threshold is zero

• Inorganic or organic material

• A one-time volume with no annual allotment

• Includes the entire project location(s)

Examples of fill are placing material for a road or building pad in a wetland, placing rip-

rap on a stream bank, placing large wood into a stream or pushing material into a

stream. Note that fill does not require that the material be imported from another site.

Fill can include moving or pushing material from an upland location on a site into a

water or wetland.

Removal-Fill Volume Thresholds

Once it has been determined that a proposed removal-fill activity is located in a

jurisdictional water of the state, then it must be determined if the activity exceeds the

applicable volume threshold, which is the amount of removal or fill allowed without a

permit.

Volume Threshold for Many Waters

For many waters of this state, 50 cubic yards or more of fill requires a permit. More than

50 cubic yards of removal within waters of this state in any calendar year requires a

permit. For projects with both removal and fill, the cubic yards of removal is added to the

cubic yards of fill. A permit is required if the combined total exceeds 50 cubic yards.

Volume Threshold for State Scenic Waterways

Any amount of removal or fill activities in State Scenic Waterway requires a permit,

except for certain prospecting (exploring for samples of precious minerals using non-

The rules define “location” as the entire area where the project is located. In determining

whether the cubic yard threshold is met, all the removal-fill activities in all waters of this state for

the entire project must be included to determine whether a permit is needed.

2-15

motorized methods from among small quantities of aggregate). A permit is not required

for:

• Prospecting that involves:

o Less than one cubic yard of removal-fill at any one individual site in any

year

o Less than 5 cubic yards of removal-fill, cumulatively, in any single

waterway in any year

Volume Threshold for Essential Salmonid Habitat

Any amount of removal-fill in ESH waters requires a permit,

except higher thresholds are allowed for certain activities

(See Chapter 3: What Activities Are Exempt?):

• Prospecting and other non-motorized activities

involving less than one cubic yard of removal-fill at

any one site and cumulatively less than 5 cubic yards

of removal-fill in any single waterway in any year

• Fish passage and fish screening structures may be

constructed, operated, or maintained up to 50 cubic

yards without a permit under ORS 498.306, 498.316,

498.326, or 509.600 to 509.645

• Activities customarily associated with agriculture involving 50 cubic yards or less

Though shown on the maps as a

line, ESH waters are

jurisdictional to Ordinary High

Water or Highest Measured Tide,

even if muted behind tidegates.

Adjacent wetlands may also be

ESH. Tributaries not mapped as

such are not ESH upstream of the

OHW or HMT elevation of the ESH

waterbody.

Essential Salmonid Habitat (ESH) Defined:

ESH is the habitat necessary to prevent the depletion of native anadromous salmon species

(chum, sockeye, Chinook and Coho salmon, and steelhead and cutthroat trout) during their

life history stages of spawning and rearing. The designation applies only to those species that

have been listed as Sensitive, Threatened or Endangered by a state or federal authority. DSL,

in consultation with ODFW, designates

ESH based on field surveys and the professional

judgment of ODFW´s district biologists.

ESH-designated areas include the stream segment identified on the ESH map and any

adjacent off-channel rearing or high-flow refugia habitat with a permanent or seasonal surface

water connection to the stream.

Adjacent off-channel rearing or high refugia habitat includes wetlands connected by shallow

surface water during high water or flood events. For tidal streams and estuaries, it would

include the wetland area inundated by higher high tides. For non-tidal areas, the wetland area

within the 100-year floodplain could be ESH, (unless excluded from flooding by a dike or other

obstruction). If a wetland is within the 100-year floodplain, the site should be investigated for

physical indicators of inundation, such as debris lines or drainage patterns. Floodplain maps

and knowledge from landowners about the frequency of inundation may also be helpful. Note

that only the wetland area within the inundation area would be considered ESH wetland and

subject to the zero cubic yard threshold. Portions of the wetland that are not connected by

surface water would be subject to the 50 cubic yard threshold.

2-16

Volume Threshold for Compensatory Mitigation Sites

Compensatory mitigation sites are areas that have been created, restored, or enhanced

to compensate for an authorized impact and are referenced in an authorization issued

by DSL. At compensatory mitigation sites, any amount of removal or fill requires a

permit. The zero volume threshold for compensatory mitigation sites applies to the

entire area of the site, including any upland buffer areas.

Volume Threshold for Ocean Renewable Energy Facilities

The threshold volume for removal-fill in Oregon’s territorial sea that is related to an

ocean renewable energy facility is any amount greater than zero.

Calculating Removal-Fill Volumes

What to Include in the Volume Calculation

In determining whether a permit is required for a project, the volumes of material that

are placed, excavated, or moved within a jurisdictional area, whether temporary or

permanent, for the entire project are added together. If the volume thresholds are met, a

permit is required.

For example, if a project involved temporary excavation

(removal) of 25 cubic yards in a stream or wetland and

the same 25 cubic yards are returned (fill) in the same

location, a permit would be required.

In a non-wetland waterway, fill and removal volumes

include the amount below OHW or HMT (in tidal areas).

Excavation volumes include the amount below the OHW

down to the full extent of the excavation.

In a wetland, fill is measured to the height of the fill

(excluding buildings) and removal includes all excavation

within the wetland boundary.

“Project” defined: For the

purpose of determining if the

volume threshold is met, a

“project” is defined as the primary

development or use intended to

be accomplished. A project is

conducted at one “location” which

is defined as the entire area

where the project is located. A

“project” must have independent

utility and may involve more than

one removal-fill site.

Special note regarding directional boring: If a directional bore enters the ground in uplands,

goes under the creek bed or wetland, and exits in uplands, the activity does not require a permit.

If a “frac-out” occurs because of the boring activity, the discharge and removal of the drilling mud

may be considered removal or fill subject to the volume thresholds. The Department would

typically handle this situation as an emergency authorization.

2-17

Examples of Removal-Fill Volume Calculations

Excavation on the Bank of a Stream

When excavating on a bank of stream, all removal below OHW must be included in the

calculation. In Figure 2-6, only area 1 is considered in the calculation of removal

volume.

Calculating Volume for Excavation at the Wetland/Upland Boundary

When excavating at a wetland/upland boundary, as shown in Figure 2-7, the area

excavated in upland is not included in the calculation.

Figure 2-7: Only area 1 is included in the calculation of removal/fill volume at the

wetland/upland boundary.

Calculating Volume for Trenching

For trenching and other temporary impact activities where material is first removed and

then placed back in the trench, the volume calculation includes both removal and fill

within the jurisdictional area only. As shown in Figure 2-8, the material in area 1 would

be calculated twice (once as removal and once as fill).

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Figure 2-8: Only area 1 is included in the calculation of volume, but it is included

as both removal and fill.

Calculating Volume for Channel Relocation

To calculate the removal-fill volume for a channel relocation project, evaluate both of the

following volumes:

• The volume of material that will be removed to construct the new channel

• The volume that would be needed to entirely fill the old channel to the OHW Line,

even if the proposed project will not fill the channel in its entirety

If either of these two amounts is greater than 50 cubic yards, a permit is required. It is

important to note that if a stream is relocated, the new channel becomes jurisdictional.

The old channel may remain jurisdictional if it meets wetland criteria or meets the

definition of intermittent or perennial stream.

Calculating Volume for Culvert Projects

When calculating fill and removal volumes for culvert replacement projects, the interior

of the culvert is not included. As shown in Figure 2-9, only the volume of material in

area 2 is included in the removal-fill calculations.

Figure 2-9: Only area 2 is included in the calculation of removal/fill volume

Temporary Removal and Fill Volumes

Removal and fill volumes associated with temporary impacts such as temporary

stockpiling of materials, temporary access roads, work-area isolation structures, and

spud piles must be included in the volume used to determine if a project exceeds the

thresholds.

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Special Situations: Activities That Cannot Be Permitted by Law

Prohibited Activities in the Territorial Sea and Navigable Bays

DSL is owner of certain lands, including most submersible and submerged lands within

the territorial sea and navigable bays. As landowner, per statute and rule there are

certain activities DSL may not enter into a contract to allow. DSL cannot grant

permission for the following activities:

• Exploration for Minerals on State-Owned Submersible and Submerged Lands

Within the Territorial Sea and Navigable Bays (ORS 274.610)

• Removal of kelp or other seaweed for commercial purposes on state owned land.

(OAR 141-125-0110 (14))

• Exploration, development, or production of oil, gas, or sulfur is prohibited in the

territorial sea. (2010 Note to ORS 274.710)

Because the landowner (DSL) cannot authorize use of the lands for these activities a

removal-fill permit cannot be issued.

Prohibited Activities in Smith or Bybee Lakes

DSL cannot issue a permit to fill within Smith or Bybee Lakes (Multnomah County),

other than for maintaining fish and wildlife habitat or to support recreational use or

public access. Any activity for enhancing or maintaining fish and wildlife habitat must be

approved by ODFW. (ORS 196.820(1) and (2))

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Chapter 3: What Activities are Exempt?

Chapter Overview

Certain activities are exempt from permit requirements of the Removal-Fill Law.

Exemptions do not apply in State Scenic Waterways (except where specifically

noted below).

Exempt activities include:

• State Forest Management Practices

• Fill for Construction, Operation and Maintenance of Certain Dams

and Water Diversion Structures

• Navigational Servitude (Maintenance of the Navigational Channel)

• Maintenance or Reconstruction of Water Control Structures

• Maintenance or Emergency Reconstruction of Roads and

Transportation Structures

• Prospecting and Non-Motorized Activities within Designated

Essential Indigenous Anadromous Salmonid Habitat (ESH)

• Fish Passage and Fish Screening Structures in Essential Indigenous

Anadromous Salmonid Habitat (ESH)

• Change in the Point of Diversion For Surface Water

• Removal of Large Wood

• Certain Voluntary Habitat Restoration Activities

• Agricultural Exemptions

• Exemptions in State Scenic Waterways

• Special Situations: Railroads and Tribal Lands

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Some activities in waters of this state are exempt from the permit requirements of

the Removal-Fill Law. Unless otherwise stated, the exemptions do not apply in

State Scenic Waterways. In applying the exemptions, it is helpful to keep in mind

the policy context:

• Some exemptions are based on the legislature’s recognition that certain

activities are already regulated by another agency (e.g., forest practices

by ODF, construction and maintenance of hydroelectric facilities by

OWRD).

• Some exemptions are based on the legislature’s recognition that these fill

and removal activities impacted waters of this state before the Removal-

Fill Law was enacted thus allowing maintenance or reconstruction does

not result in significant new impacts.

• Each of the exemptions is complex and depends on the facts of the

particular activity.

State Forest Management Practices

As stated in the administrative rules:

Non-federal forest management practices subject to Oregon’s Forest

Practices Act (FPA) conducted in any non-navigable water of the state are

exempt. When these forestlands are being converted to other uses the

exemption does not apply to the activities associated with the new use. Forest

management practices shall be directly connected with a forest management

practice conducted in accordance with ORS 527.610 to 527.770, 527.990 and

527.992, such as:

(a) Reforestation;

(b) Road construction and maintenance;

(d) Disposal of slash.

To elaborate:

• This exemption does not apply in State Scenic Waterways.

• The exemption covers forest management practices on state and private

forestlands. Activities conducted on federal forestlands and in state-owned

navigable waters are not covered.

• The term “forestland” means land that is used for the commercial growing

and harvesting of forest tree species, regardless of how the land is zoned

or taxed.

Chapter 3: What Activities are Exempt?

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• The exemption covers any activity directly connected with a recognized

forest management practice and conducted in accordance with the FPA.

DSL relies on ODF to make these determinations.

• The exemption does not cover activities associated with changing the use

of the land to a non-forest use. The FPA exemption applies to the final

harvest operation and all forest management practices directly connected

to the final harvest. But, if removal-fill activities are required for the new

use, DSL has regulatory authority. For example, if forestland is being

converted to a residential subdivision, construction of roads for harvest

and transport of the timber are covered under the FPA. However, if wider

roads are required for the subdivision, the road widening is not covered

under the FPA exemption, and a removal-fill permit may be required if

there are impacts to wetlands or waterways.

When forestland is converted to another use, coordination is required between

ODF and DSL to facilitate this transition. In these cases:

• The property owner submits a “notice of alternate practice” to ODF.

• If ODF believes there are wetlands or waterways on the property, ODF

sends the notice to DSL.

• DSL conducts a preliminary off-site jurisdictional determination to

determine whether a wetland delineation or removal-fill permit is required

for the activities associated with the new use.

Fills for Construction, Operation and Maintenance of Certain

Dams and Water Diversion Structures

As stated in the administrative rules:

Filling the beds of the waters of this state for the purpose of constructing,

operating and maintaining dams or other diversions for which permits or

certificates have been or shall be issued under ORS Chapters 537 or 539 and

for which preliminary permits or licenses have been or shall be issued under

ORS 543.010 to 543.610 is exempt.

To elaborate:

• This exemption does not apply in State Scenic Waterways.

• The exemption applies to hydroelectric facilities authorized by OWRD.

• The exemption only applies to the fill activities associated with the

construction, operation and maintenance of hydroelectric facilities.

Removal within waters of this state to build a dam or diversion or to create

a reservoir is not covered under this exemption.

• Removal or fill within waters of this state for the construction of a structure

associated with a dam or diversion, such as a fish ladder, access roads,

and/or streambank stabilization project, are not exempt under this

provision.

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Navigational Servitude (Maintenance of the Navigational

Channel)

As stated in the administrative rules:

Activities conducted by or on the behalf of any agency of the federal

government acting in the capacity of navigational servitude in connection with

a federally authorized navigation channel are exempt. Disposal of dredged

material within the ordinary high water line of the same waterway is also

exempt.

To elaborate:

• “Navigational servitude” is a U.S. constitutional doctrine that gives the

federal government a property right over waterways as an extension of the

Commerce Clause of Article I, Section 8 of the Constitution. It is also

sometimes called federal navigational servitude.

• “Federally authorized navigation channels” are designed and maintained

by the Corps.

• The exemption covers any agency or contractor conducting removal-fill

activities as part of the maintenance of the federally authorized navigation

channel.

• The exemption also covers such structures as dolphins or other

navigational structures that are necessary elements for maintaining the

federally authorized navigation channel.

• The exemption also covers disposal of material below OHW of the same

waterway. It does not cover disposal of material in wetlands above OHW.

• For tidal bays and rivers, DSL interprets “same waterway” to include the

Pacific Ocean and exclude disposal on tidelands.

Maintenance or Reconstruction of Water Control Structures

As stated in the administrative rules:

Fill or removal for maintenance or reconstruction of water control structures

such as culverts, dikes, dams, levees, groins, riprap, tidegates, drainage

ditches, irrigation ditches, and tile drain systems are exempt if:

(a) The project meets the definition of maintenance under OAR

141-085-0510(57); or

(b) The project meets the definition of reconstruction under OAR

141-085-0510(87);

(d) The maintenance or reconstruction would not significantly

adversely affect wetlands or other waters of this state to a greater

extent than the wetlands or waters of this state were affected as a

result of the original construction of those structures.

To elaborate:

• This exemption does not apply in State Scenic Waterways.

• The list of structures above and those that are substantially similar in

nature are included.

• Retaining walls, bulkheads, and other similar structures that create or

extend upland are not considered “water control structures”. Stormwater

outfalls are also not included in the exemption but are included in the

Minimal Disturbance GA.

• “Serviceable” means the structure was capable of being used for its

intended purpose. The structure must have been serviceable within the

past five years.

• “Maintenance” means the periodic repair or upkeep of a structure to

maintain its original use.

• “Maintenance” includes widening a structure by no more than 20 percent

of its original footprint at any specific location in waters of this state if

necessary to maintain its serviceability. In the case of culverts, widening

can mean widening the culvert or widening of the road prism thus

lengthening the culvert. Widening to expand serviceability, capacity, or

add new features is expansion and not considered maintenance.

• Maintenance cannot “significantly” adversely affect wetlands or other

waters to a greater extent than the original construction.

• “Maintenance” also includes removal of the minimum amount of sediment

either within, on top of or immediately adjacent to a structure as necessary

to restore its serviceability, provided that the spoil is placed on upland.

• Expansion or revision of a structure to accommodate a new or expanded

purpose is not covered under this exemption. For example, expanding the

size of a levee to provide vehicle access, when it was not provided with

the original construction, is not covered under this exemption.

• “Reconstruction” means to rebuild or replace the existing structure in kind

and includes a structure being widened by no more than 20 percent of its

original footprint at any specific location in waters of this state.

• Ditches are included as a structure under this exemption, but care must be

taken to confirm that the “structure” meets the definition of a ditch and is

not a channelized stream. A channelized stream is not a structure and

dredging a channelized stream is not covered under this exemption.

3-5

Maintenance or Emergency Reconstruction of Roads and

Transportation Structures

As stated in the administrative rules:

Fill or removal for maintenance, including emergency reconstruction of

recently damaged parts, of currently serviceable roads or transportation

structures, such as groins and riprap protecting roads, causeways, bridge

abutments or approaches, and boat ramps is exempt.

To elaborate:

• This exemption does not apply in State Scenic Waterways.

• The structure must be currently serviceable.

• This exemption has no volume or acreage limits, except as noted below.

• “Maintenance” means the periodic repair or upkeep of a structure to

maintain its original use.

• “Maintenance” includes widening a structure by no more than 20 percent

of its original footprint at any specific location in waters of this state if

necessary to maintain its serviceability. Widening to expand serviceability,

capacity, or add new features is considered expansion and not

maintenance.

• Maintenance cannot “significantly” adversely affect wetlands or other

waters to a greater extent than the original construction.

• “Maintenance” also includes removal of the minimum amount of sediment

either within, on top of or immediately adjacent to a structure as necessary

to restore its serviceability, provided that the spoil is placed on upland.

Under limited circumstances the material may be allowed to be placed

within the stream.

• Expansion or revision of a structure to accommodate a new or expanded

purpose is not covered under this exemption. For example, adding a

detour lane during emergency reconstruction is not covered under this

exemption.

• Emergency “reconstruction” means to rebuild or replace the existing

structure as it was originally built. It includes a structure being widened by

no more than 20 percent of its original footprint.

• “Recently damaged parts” refers to structures that were damaged as a

result of recent flood or other event.

• Although not listed here, bike paths, pedestrian paths, airport taxiways

and airport runways are considered transportation structures. Parking lots

and docks are not considered transportation structures.

• Streambanks and streambeds that are not part of the road fill are not

considered structures.

3-6

Prospecting and Non-Motorized Activities within Designated

Essential Indigenous Anadromous Salmonid Habitat (ESH)

As stated in the administrative rules:

A permit is not required for prospecting or other non-motorized activities

resulting in removal-fill of less than one cubic yard of material at any one

individual site and, cumulatively, not more than five cubic yards of material

within a particular stream in a single year. Prospecting or other non-motorized

activities may be conducted only within the bed or wet perimeter of the

waterway and shall not occur at any site where fish eggs are present.

To elaborate:

• Non-motorized activities are conducted by hand and are not powered by

internal combustion, hydraulics, pneumatics or electricity. The use of

hand-held tools such as gold pans, wheelbarrows, shovels, rakes,

hammers, pry bars and manually operated cable winches are examples of

common non-motorized methods.

• The exemption covers prospecting and other non-motorized activities.

• This exemption applies to removal-fill activities in ESH streams.

• Volumes of disturbance are limited to one cubic yard of material at any

one individual site and, cumulatively, not more than five cubic yards of

material within a particular stream in a single year.

• The activity can only be conducted within the bed or wet perimeter of the

stream. “Wet perimeter” refers to the area of the stream under water or

exposed as a non-vegetated, dry gravel bar surrounded by moving water

at the time the activity occurs. Removal-fill activities between the wet

perimeter and the ordinary high water line are not covered under this

exemption.

• The activity may not be conducted where fish eggs are present. To avoid

fish eggs the activity should be performed within the in-water timing

recommended by the ODFW.

Fish Passage and Fish Screening Structures in Essential

Indigenous Anadromous Salmonid Habitat (ESH)

As stated in the administrative rules:

Less than 50 cubic yards of removal-fill for the construction and maintenance

of fish passage and fish screening structures is exempt, provided the project

complies with applicable Oregon Department of Fish and Wildlife fish

passage statutes (ORS 509.580-509.910). This exemption includes removal

of material that inhibits fish passage or prevents fish screens from functioning

properly.

3-7

To elaborate:

• This exemption does not apply in State Scenic Waterway. (However,

under the state scenic waterway statutes (ORS 390) construction of or

improvements to fish passage or propagation facilities by ODFW is

exempt.)

• This exemption allows for construction of new and maintenance of existing

fish passage and screening structures in ESH waters. (For other waters, if

the project involves more than 50 cubic yards of removal and/or fill a

permit would be required.)

• To address fish passage requirements, ODFW should be contacted to

determine if a fish passage plan is required.

• The exemption also includes removal of material to maintain proper

function of the fish passage and screen structures.

• The exemption is limited to less than 50 cubic yards of removal and/or fill.

Fill or Removal for a Change in the Point of Diversion for

Surface Water

As stated in the administrative rules:

Fill or removal for a change in the point of diversion to withdraw surface water

for beneficial use is exempt if the change in the point of diversion is: (a)

Necessitated by a change in the location of the surface water; and (b)

Authorized by the Oregon Water Resources Department.

To elaborate:

• This exemption does not apply in State Scenic Waterways.

• The need to change the point of diversion must be the result of the

waterway having moved leaving the diversion point inoperable.

Removal of Large Wood

As stated in the administrative rules:

Removal of Large Wood. Removal of large woody debris is exempt if:

(a) It poses a direct and demonstrable danger to livestock, human

life, or real property; or

(b) It poses a risk of harm to transportation facilities including, but

not limited to, culverts, bridges and roads located near or within

the beds or banks of any waters of this state; or

3-8

any waters of this state; and

(d) The removal is no more than the amount necessary to reduce

or eliminate the threat.

To elaborate:

• This exemption does not apply in State Scenic

Waterways.

• Large wood removed from state-owned waters will

be subject to a DSL proprietary approval.

• If the wood is “stamped” it could be owned by

someone and therefore proprietary authorization

and royalty may be due upon removal.

Certain Voluntary Habitat Restoration Activities

The following activities are exempt from removal-fill permit requirements as

stated in the administrative rules. Some require notifying DSL at least 30 days

before the project begins, as noted below.

• Research and Fish Management in ESH: Construction and maintenance

of scientific and research devices related to population management,

watershed and habitat restoration, and species recovery, provided the

activity does not exceed 50 cubic yards of removal or fill.

• Vegetative Planting: Planting native woody or herbaceous plants by

hand or mechanized means. Ground alteration such as grading or

contouring before planting is not covered by this exemption.

• Refuge Management: Habitat management activities located in a

National Wildlife Refuge or State Wildlife Area that are consistent with an

adopted refuge or wildlife area management plan. Fill or removal in waters

of this state for non-habitat management activities such as road or building

construction is not covered by this exemption.

• Ditch and Drain Tile Removal: Disruption or removal of subsurface

drainage structures (e.g., drain tiles) and plugging or filling of drainage

ditches in wetlands. Notification must be submitted on a form provided by

DSL at least 30 calendar days before commencing the activity.

• Placement of Large Wood, Boulders and Spawning Gravels: Provided

the project location is not tidally influenced and material is placed

consistent with the Guide to Placing Large Wood and Boulders

(DSL/ODFW 2010). Notification must be submitted on a form provided by

DSL at least 30 calendar days before commencing the activity.

A permit is not required to

remove wood that is not at least

partially resting on the bed or

banks of a waterway and is not

placed into waters of this state

as part of a habitat

improvement or conservation

project.

3-9

Three voluntary habitat

restoration activities require a

notice form be sent to DSL at

least 30 calendar days before

starting the project:

• Ditch and drain tile removal

• Placement of large wood,

boulders and spawning

gravels

• Other activities customarily

associated with habitat

restoration in ESH

The notice form allows DSL to

track the use of the exemption,

make compliance inspections,

evaluate the effect of the

exemption, and to respond

appropriately to citizen

complaints about potential

unauthorized activities.

• Other Activities Customarily Associated with Habitat Restoration in

ESH: Other voluntary habitat restoration activities resulting in less than 50

cubic yards of removal-fill in waters of this state, including the disposal of

material resulting from restoration activities within the project area as long

as it assists in accomplishing the objectives of the habitat restoration

project. The activities must be consistent with the Oregon Aquatic Habitat

Restoration and Enhancement Guide and utilize materials or structures

that would naturally and/or historically occur at the project site. Notification

must be submitted on a form provided by DSL at least 30 calendar days

before commencing the activity.

• Removal of Trash, Garbage and Rubble. A permit is not required for the

removal of any amount of inorganic trash, garbage, and rubble (e.g., tires,

metal, broken concrete, asphalt, foam, plastic) from waters of this state.

The project must meet the following criteria: (a) There are no adverse

impacts to waters of this state or woody

vegetation as a result of the project; (b)

There is no stockpiling of collected trash,

garbage or rubble in waters of this state; and

licensed Department of Environmental

Quality collection facility.

To elaborate:

• These exemptions do not apply in State

Scenic Waterways.

• “Habitat Restoration” means the return of an

ecosystem from a disturbed or altered

condition to a close approximation of its

ecological condition before disturbance. The

intent of this definition is to limit the

exemptions to those projects where the

objective is to return the altered or damaged

area to as close an approximation of its

historical (pre-European settlement)

condition as is practicable, given landscape

scale changes. Projects aimed at changing one type of habitat to another

to meet other objectives (e.g., creating ponds in wetland or streams for

fish production) are not consistent with this definition (refuge management

is the only exception).

• “Voluntary” means activities undertaken by a person of their own free

will, and not as a result of any legal requirement of the Removal-Fill

Law. Restoration projects for mitigation banks, in-lieu fee mitigation,

and payment in lieu mitigation are not considered voluntary under this

definition.

• In-water activities are conducted during the ODFW recommended in-water

timing guidelines, unless otherwise approved in writing by ODFW.

3-10

• The activities do not convert waters of this state to uplands.

• The activities will cause no more than minimal adverse impact on waters

of this state including impacts related to navigation, fishing and public

recreation.

• The activities do not cause the water to rise or be redirected in such a

manner that it results in flooding or other damage to structures or

substantial property off the project site.

• All necessary access permits, right of ways, and local, state and federal

approvals have been obtained.

Agricultural Exemptions

The Removal-Fill Law provides several exemptions for specific agricultural

activities in wetlands and other waters of this state. The exemptions are specific

to the type of land (e.g., zoned exclusive farm use) and the type of activity (e.g.,

plowing and cultivating). If the specific requirements regarding the type of land

and type of activity are met, no permit is required.

Keep in mind:

• These exemptions do not apply in State Scenic Waterways.

• The exemptions are only for farm uses and activities. Non-farm activities,

such as county road projects or residential development projects, are not

covered by these exemptions, even if the land where the activity will occur

is currently farmed.

• The exemptions are conditional and they each have specific limits.

• With few exceptions, the exemptions for agricultural activities in wetlands

apply only to wetlands that have been farmed continuously since July 1,

1989. If the exemptions do not apply they have not been farmed

continuously and have been allowed to convert back to “natural wetlands”.

Normal Farming and Ranching on Converted Wetlands

As stated in the administrative rules:

Exempt activities on converted wetlands include:

(a) Plowing;

(b) Grazing;

(d) Planting;

(e) Cultivating;

(f) Conventional crop rotation; or

(g) Harvesting.

To elaborate:

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• The normal farming and ranching exemptions are allowed only on

“converted wetlands” which are wetlands that have been converted to

agricultural use, but still meet wetland criteria. For a field to be a converted

wetland, it must have been cleared of the natural vegetation and

hydrologically manipulated through the construction of ditches, berms or

installation of subsurface drainage to make the field suitable for farming.

This conversion must have occurred before July 1, 1989. To be

considered converted wetland, the field must be actively managed to

produce an agricultural commodity.

• The exemption does not apply to natural (unfarmed) wetlands. The

exemption also does not apply to any other waters of this state including

creeks or sloughs that may run through or adjacent to converted wetland

fields.

• Exempt activities include only ongoing or regular farming activities that do

not completely drain or fill the converted wetland, turning it to upland. For

example, intentionally blading soil into low swales or importing fill material

to create drier conditions is not exempt.

• Bringing wetland areas into production that are not currently farmed is not

exempt.

• Bringing abandoned wetland fields back into production is not exempt.

Wetlands that may have been previously farmed, but that have not been

actively and regularly managed for commercial agricultural production

such that natural vegetation is now dominant, are considered abandoned.

A permit is required to bring abandoned wetland fields back into

production.

• “Normal Farming and Ranching Activities” that are exempt on converted

wetlands are limited to the types of activities listed in the statute and

include plowing, grazing, seeding, planting, cultivating, conventional crop

rotation and harvesting. However, this is not a finite list of exempt

activities. Statute uses the term “such as” which means that similar

activities may also be exempt, but they must be similar in their scope and

effect. None of the listed exempt activities (plowing, seeding, planting etc.)

would normally change wetlands to non-wetlands. Only minor alterations

that do not drain or fill the converted wetlands are exempt.

Examples of Converted Wetlands

The following examples help to illustrate converted wetlands:

• Most of the commercial agricultural fields in the Willamette Valley that

were first farmed before July 1989 have been cleared and hydrologically

manipulated by ditching and other activities such as land leveling. Unless

they have been abandoned (see description, above), they are converted

wetlands.

• Much of the diked (and sometimes continually pumped) agricultural fields

surrounding the Klamath Lakes are converted wetlands. Some pastures

may be converted wetlands. DSL has interpreted converted wetlands to

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include pastures that meet the same “tests” as

other converted wetlands: cleared of natural

vegetation and hydrologically manipulated to

reduce the hydrology before July 1989, and

actively managed to produce a commercial

agricultural product. For some pastures, the

product is meat or milk. The distinction between

intensively managed fields that are converted

wetlands and fields that may be grazed but are

not converted wetlands may be difficult to

determine.For example, pastures in Tillamook

County that have been diked and have well

maintained surface drainage systems, have

managed plant species (seeded, weed control,

periodically plowed and reseeded), and support

dairy cows are considered converted wetlands.

In contrast, an area that is not actively

maintained as pasture (rarely plowed, dominated by native or natural

vegetation, or includes shrubs) and has little or no hydrologic

manipulation is not a converted wetland, even though horses or other

livestock may be pastured there.

Examples of Normal Farming and Ranching Activities

Exempt activities are established (began before July 1989) and occur on an

annual or less-than-annual but regular basis appropriate for the crop.

Examples of exempt farming and ranching activities include:

• Perennial crop production where the fields are plowed every few years

(not annually) and the crop is intensively managed with use of weed

control, fertilizers and pesticides.

• Setting out plants started in a greenhouse or planting seedlings.

• Adding compost and other soil amendments.

• Plowing or re-creating shallow surface ditches in low swales or around the

perimeter of a field, even if not in precisely the same location.

Certain Activities on EFU-Zoned Lands

As stated in the administrative rules:

The following activities on lands zoned for exclusive farm use as described in

ORS 215.203 as designated in the city or county comprehensive plan are

exempt:

(a) Drainage or maintenance of farm or stock ponds; or

(b) Maintenance of existing farm roads in such a manner as to not

significantly adversely affect wetlands or any other waters of this state; or

converted wetlands.

Caveat on abandoned converted

wetlands: If the field was enrolled in

a federal conservation reserve

program (e.g., NRCS Wetland

Reserve Program) and the

provisions of that program allow the

field to be brought back into

cultivation for crops, a removal-fill

permit is not required. The

exemption allows the

“reestablishment” of crops, not

conversion to upland; thus, removal-

fill activities covered by the

exemption include brush removal

with heavy equipment, disking,

plowing, and minor ditching.

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To elaborate:

• This exemption is limited to lands that are zoned EFU. For some of these

exemptions, additional restrictions regarding the type of wetland also

apply.

• Farm or stock pond drainage or maintenance includes all removal-fill

activity necessary to drain a pond (remove berms, create spillway, etc.)

and remove accumulated sediments within the pond. Because the

exemption is limited to farm or stock ponds, the exemption does not

include placing spoils from pond maintenance into another jurisdictional

water, including any adjacent stream reaches if the pond was constructed

in a stream.

• Maintenance of existing farm roads is exempt from permit requirements if

the maintenance activity does not significantly adversely affect any waters

of this state to a greater extent than the original construction.

• “Maintenance” means the periodic repair or upkeep of a structure to

maintain its original use. Maintenance includes widening a structure by no

more than 20 percent of its original footprint at any specific location in

waters of this state if necessary to maintain its serviceability. Expansion of

a structure to accommodate a new or expanded purpose is not covered.

• “Maintenance” also includes removal of the minimum amount of sediment

either within, on top of, or immediately adjacent to a structure that is

necessary to restore its serviceability, provided that the spoil is placed on

upland.

• Statute allows installation of new subsurface drainage systems or

expansion of subsurface drainage systems on converted wetlands that are

zoned EFU. The following limitations apply:

• The exemption applies only to converted wetlands (currently in

commercial agricultural production and not abandoned).

• A person may not expand the subsurface drainage system into adjacent

wetland areas that are not converted wetland.

The exemption is for subsurface drainage systems only. It does not

include surface ditches or any other surface drainage system.

Exempt Farm Uses on Certified Prior Converted Cropland (PC)

As stated in the administrative rules:

Any activity defined as a farm use in ORS 215.203 is exempt if the land is

zoned for exclusive farm use pursuant to 215.203, if the lands are converted

wetlands that are also certified as prior converted cropland by the Natural

Resources Conservation Service, so long as commercial agricultural

production on the land has not been abandoned for five or more years.

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To elaborate:

• The exempt farm uses include anything that is

defined as a farm use by the Statewide Land Use

Planning statute. For example, farm uses include

gravel or paved areas for loading trucks to transport

agricultural products, all barns and similar farm

buildings, stockpiling compost, construction of

commercial riding stables and arenas, feedlots, and

construction of ponds for aquatic crops.

• The exemption is limited to Certified PC areas only.

Certified PC means that NRCS has made an onsite wetland determination

and provided the results to the farmer on a form CPA-026 that is signed

and dated after July 3, 1996. The NRCS determination includes a map

(usually an aerial photograph) showing the PC area(s) and any other farm

bill designations such as “farmed wetland.”

• PC includes the cultivated fields only, not any adjacent waterways. In fact,

NRCS is not allowed to map streams, ponds or any other waters than

wetlands. Therefore, the landowner and DSL staff need to be aware that

the NRCS map is not a complete map of all potential waters of this state

on or adjacent to the fields in question. The sole purpose of the NRCS

maps is to identify wetlands that meet requirements for specific farm bill

designations.

• The land where the farm use is proposed must meet two requirements for

the exemption to apply: (1) it must be converted wetland (converted before

July 1989) per the Removal-Fill Law definition; and (2) it must be certified

as PC as described above. This is important because NRCS may certify a

field as PC even though farming had not been continuous and the field

had been abandoned many years ago; that field would not meet DSL’s

converted wetland definition if it had been abandoned for five or more

years.

• Due to the limitations described in the previous two bullets, when DSL

receives a PC determination DSL must review it and may request

additional information to (1) determine if the PC area also meets the

converted wetland definition (not abandoned) and (2) if there are any other

unmapped waters of this state (creek, etc.) that may be affected by the

proposed activity.

• If the proposed activity is not a farm use on EFU-zoned land, there is no

need to determine whether or not a wetland has been designated as “PC”

by NRCS. The designation “PC” is not relevant to any other exemption

under the Removal-Fill Law.

Cautionary note: There are

various old aerial photo-based

or soil survey-based maps

done by NRCS that show

some areas as PC. These

were early broad-scale

mapping efforts; they are not

certified determinations.

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Activities Customarily Associated with Agriculture in ESH

As stated in the administrative rules:

These are activities, including maintenance activities that are commonly and

usually associated with the raising of livestock or the growing of crops in

Oregon. Removal-fill covered by this exemption shall not exceed 50 cubic

yards of material.

To elaborate:

• In most circumstances, a permit is required for all fill, removal and ground

alteration within ESH streams. However, activities customarily associated

with agriculture are exempt up to a 50 cubic yard limit (cumulative).

• Activities that are commonly and usually associated with raising livestock

or growing crops, including maintenance activities (e.g., farm roads,

hardened structures for cattle stream access, and crossing or culvert

maintenance), are considered activities customarily associated with

agriculture. Streambank stabilization is not considered an activity

customarily associated with agriculture.

Push-Up Dams

As stated in the administrative rules:

Department-authorized push-up dams greater than 50 cubic yards can

continue to be maintained indefinitely during the irrigation season and

reconstructed each successive season provided the work is done in

compliance with all original permit conditions and the Oregon Department of

Fish and Wildlife fish passage statutes (ORS 509.580–509.910). In the event

of conflicts with the original permit conditions, the most recent fish passage

requirements will be controlling.

Push-up dams that were built prior to September 13, 1967, are exempt if they

meet the following tests:

• Are reconstructed, serviceable and used within the past five years;

• Have the same effect as when first constructed (i.e., size and location);

and,

• Are operated in a manner consistent with the water right certificate and ORS

540.510(5).

• Push-up dams less than 50 cubic yards used for agricultural purposes in ESH are

exempt.

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To elaborate:

• “Push-up dams” are temporary impoundments that are used only during

the irrigation season which will vary depending on the geographic area,

crops, soil conditions and other factors, but generally runs from May to

October of each year.

• “Same effect” (as when the push-up dam was first constructed) means

that while the precise location of the dam may vary from year to year,

there is no net increase in adverse effects associated with moving the

dam from year to year.

• Department-authorized push-up dams greater than 50 cubic yards can

continue to be maintained indefinitely during the irrigation season if work is

done in compliance with all original permit conditions and the current

ODFW fish passage statutes.

Repair or Replacement of Farm Dwellings and Buildings

As stated in statute (ORS 196.921(14); there is no administrative for this statute):

Unless otherwise provided in a proposed order or in a final order issued in a

contested case, nothing in ORS 196.800 to 196.900 applies to removal or

filling, or both, originally intended or subsequently used for the establishment,

repair, restoration, resumption or replacement of the following uses, if the use

was established on or before January 1, 2017, on lands zoned for exclusive

farm use, forest use or mixed farm and forest use:

(a) A dwelling:

(A) Described in ORS 215.213 (1) or (3) or 215.283 (1);

(B) Established subject to county approval under ORS 215.402 to

215.438; or

(b) An agricultural building as defined in ORS 455.315; or

(A) Are associated with a dwelling or agricultural building described

in this subsection;

(B) Have received county approval, if necessary, under ORS

215.402 to 215.438; and

agricultural building.

To elaborate:

• “Dwellings” specifically refer to farm dwellings. Statute (ORS 215.213 and

215.283) establishes many conditions on this definition and must be

consulted.

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• “Agricultural buildings” include a wide variety of structures. See ORS

455.315 for a complete listing.

• “Replacement” is defined in statute to mean the construction of a new

structure that is substantially similar in size, sited in a substantially similar

location and constructed in place of a previously existing structure.

• “Activities that are associated with a dwelling or agricultural building” is an

undefined term and should be interpreted broadly to mean any activities

that are instrumental to supporting the function or operation of the dwelling

or building.

• To qualify for this exemption, farm dwellings and agricultural buildings

(and associated activities) must have been originally established on or

before January 1, 2017, except as otherwise noted for dwellings.

Exemptions in State Scenic Waterways

The following activities are exempt from removal-fill permits in State Scenic

Waterways.

• Prospecting: A removal-fill permit is not required for non-motorized

methods of recreational prospecting resulting in filling, removing and

moving by artificial means less than one cubic yard of material at any one

individual site and, cumulatively, not more than five cubic yards of material

from within the bed or wet perimeter of any single scenic waterway in a

single year. Recreational prospecting is prohibited from any site where fish

eggs are present.

• Certain Activities Conducted by ODFW: ODFW may construct facilities

or make improvements to facilitate the passage or propagation of fish and

exercise other responsibilities in managing fish and wildlife resources

without a removal-fill State Scenic permit.

• Certain Activities Conducted by OWRD: OWRD may construct and maintain

stream gauge stations and other facilities related to OWRD’s duties in the

administration of the water laws without a removal-fill permit.

Special Situations: Railroads and Tribal Lands

Railroad Exemption

Federal law (the Interstate Commerce Commission Termination Act of 1995

preempts state regulation of railroad activities that are regulated by the federal

Surface Transportation Board, including enforcement of removal-fill permit

requirements. Specifically exempt are railroad facilities and activities that are

integrally related to the provision of interstate rail service. This includes intrastate

rail operations that are significantly associated with interstate commerce (e.g.,

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rail operations transporting freight in interstate commerce or participating in

through-passenger arrangements).

Examples of exempt activities include:

• The construction, operation, maintenance and removal of rail lines,

including spurs and sidings, and rail bridges, trestles, culverts and other

wetland/waterway crossing structures.

• Railroad maintenance facilities.

• Roadway crossing devices and switching facilities.

• Transloading facilities operated directly by, or under contract with, a rail

carrier.

Examples of non-exempt activities include:

• The construction, operation, maintenance and removal of roadways

approaching a rail crossing.

• Warehouse or other business development on a rail spur or siding.

• A “short line” that does not move freight as part of interstate commerce or

handle through-passengers.

Tribal Lands Exemption

Tribal trust lands

located within federally recognized

reservations are generally not subject to the

requirements of the Removal-Fill Law. This includes

lands in the process of being taken into trust, that is,

the Department of the Interior has the parcel listed in

a “land acquisition plan” for the tribe.

The only exception to this is where DSL can

reasonably argue that removal-fill activity on the tribal

trust land will have adverse effects to waters off trust

lands.

Conversely, removal-fill activities by non-Indian entities on non-tribal trust lands

within a reservation (for example, ODOT right-of-way on Hwy. 26 through the

Warm Springs Reservation) still require a removal-fill permit.

Because of the legal complexities associated with the application of state

regulation on tribal lands, DSL staff must consult with DSL management and the

Department of Justice before making a jurisdictional determination on tribal lands

of any form.

More information on Oregon’s tribes.

“Tribal trust lands” means lands that the Department of the Interior holds title to for the benefit of

a tribe.

Tribal casinos are a special case

because they are built under

gaming agreements negotiated

between the state and a tribe.

Therefore, the Department of

Justice must examine the gaming

agreement to determine if the state

retained environmental regulation

authority over lands connected with

the casino.

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4-1

Chapter 4: Planning Ahead

Chapter Overview

A well-planned project will result in an easier and faster permitting process. This section

provides guidance about early identification of wetlands and waterways on a project

site, hiring a consultant, evaluating alternatives to avoid and minimize impacts, planning

to mitigate for unavoidable impacts, and pre-application meetings.

Identifying Regulated Waters on the Project Site

Early identification of regulated waters and their jurisdictional boundaries is essential for

informed project planning. The National Wetland Inventory (NWI), State Wetland

Inventory (SWI), and Local Wetland Inventory (LWI) maps are helpful tools for early

identification of wetlands, but they are not conclusive and do not take the place of a

wetland delineation. While lakes and rivers are easily identifiable, regulated intermittent

streams, channelized streams, ditches, ponds, and wetlands can be more difficult, and

require additional investigation.

Retaining Professional Consultant Services

Most projects involving wetlands and waterways require the technical expertise of

wetland or environmental consultants to determine wetland boundaries, prepare

functions and values assessments and develop mitigation plans.

Exploring Alternatives to Avoid and Minimize Impacts

Applications for removal fill permits require demonstration that the activity is the

practicable alternative with the least impact to wetlands or waterways. To do this,

applicants must have a clear purpose and need, a set of project criteria and explore

alternative project locations alternative site layouts and alternative construction methods

to avoid and minimize impacts to meet the project objectives.

Planning to Mitigate for Unavoidable Impacts

If some impacts to wetlands or waterways are unavoidable, the applicant must propose

mitigation to replace the functions and values lost as a result of the removal-fill.

Pre-design Permit Scoping

Most projects require permits or approvals from many local, state and federal agencies.

Early identification of all the permits and their requirements is essential to avoid costly

redesign and project delays.

Pre-application Meetings

DSL offers pre-application meetings to assist applicants in planning ahead for a smooth

permitting process. These meetings are available at no cost to the applicants.

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Identifying Regulated Waters on the Project Site

DSL recommends that identification of wetlands and waterways on the project site and

getting confirmation of the jurisdictional boundaries (a jurisdictional determination) be

done as early as possible in the project planning process so that applicants can:

• Determine the need for a permit

• Avoid and minimize impacts where possible

• Assess the mitigation obligation

• Eliminate surprises or revisions that could result in increased time and money for

the project

The wetland identification process should begin before project design and at least six

months in advance of application submittal to allow time to:

• Secure consulting services

• Conduct field work (some wetlands require a spring hydrology check)

• Prepare a wetland delineation report

• Obtain DSL concurrence (120 days or longer)

How to Identify Regulated Waters

Wetlands, rivers, perennial and intermittent streams, lakes, many ponds, the Pacific

Ocean, and estuary bays are subject to state removal-fill permit requirements. A

complete listing and description of jurisdictional waters of this state can be found in

Chapter 2 When is a Permit Required? Some of these waters are easy to identify and

determine the jurisdictional status, but others are more difficult.

For example, some wetlands may never have surface

water or may dry out in the summer and do not really

“look like wetlands.” An informal evaluation of the property

using the tools described in the Wetlands in Oregon fact

sheet may be helpful in the identification of wetlands.. In

some instances, DSL may conduct an off-site wetland

determination upon request. If wetlands are suspected, a

wetland consultant should be retained to conduct a formal

wetland determination or delineation for DSL

concurrence. Be sure the study area encompasses the

entire project area, including site access, staging, areas

that may be impacted if the project is modified, and areas

that may be indirectly impacted by the project (such as

change in wetland hydrology).

Chapter 4: Planning Ahead

Voluntary habitat restoration

projects may not require a

delineation. DSL needs sufficient

information to know if project

benefits outweigh impacts. That

may require a delineation, but for

certain projects fewer data may be

adequate, e.g., several data plots;

NWI, topo, or soils maps; aerial

photos, etc. It will be important to

work closely with the Aquatic

Resource Coordinator.

4-3

While most streams, lakes, and ponds (non-wetland waters) are easily identified, their

jurisdiction may be complicated. For example, many “ditches” are actually channelized

streams and are considered waters of this state. If a ditch is a true ditch, it may or may

not be jurisdictional depending on certain characteristics. Refer to Chapter 2: When is a

Permit Required? for more information on these. Aquatic Resource Coordinators may

be available to determine the jurisdictional status of some of these more difficult non-

wetland waters.

Determine the Jurisdictional Boundaries

In addition to identifying the presence of regulated waters in the project area, the

jurisdictional boundary, or the area subject to removal fill permitting requirements, must

be determined. For waterways, that boundary is the OHW elevation or HMT elevation in

tidal areas. For wetlands, the boundary is determined by a wetland delineation study,

conducted by a wetland consultant. Be sure the study area encompasses the entire

project area, including areas that would likely be impacted if the project is modified.

Doing so will help prevent project delays caused by additional delineation needs.

Jurisdictional Confirmation from DSL

The presence, or absence, of regulated wetlands and waters, as well as their

jurisdictional boundaries, are not official until DSL makes a jurisdictional determination.

The jurisdictional determination of non-wetland waters, including the elevation of OHW

or HMT may be confirmed by the Aquatic Resource Coordinator at the time of the

removal fill permit application. Earlier confirmation may be obtained during a pre-

application meeting. Contact the Aquatic Resource Coordinator to determine if a

wetland delineation or determination report is required if the only impacts proposed are

non-wetland waters. A wetland delineation or determination report concurrence may be

required to show the impacts above OHW are upland.

For wetlands, jurisdictional determinations are made upon review of a wetland

determination or delineation report. Wetland determination and delineation reports are

reviewed separately from permit applications. Delineation work should be conducted

before finalizing project designs and reports should be submitted to DSL at least six

months in advance of a permit application. If non-wetland waters are also present on

the project site, they should be included in the report and figures and DSL will include

them in the jurisdictional concurrence at the time of the wetland report review.

In almost all cases, if a project involves removal or fill in wetlands, a wetland delineation

report that meets the requirements of OAR 141-090 will be required.

4-4

There are three situations where DSL may waive the wetland delineation requirement:

The entire project area is wetland:

If the entire area of proposed ground alteration meets wetland criteria, there is no need to

conduct a wetland delineation. In this situation, the Department will require compensatory

wetland mitigation for all areas of impact and evidence that avoided areas are not converted to

upland.

Only temporary im

pacts to wetlands are proposed:

Temporary impacts are defined as those that are rectified within 24 months of initiating the

impact. A wetland delineation for temporary impacts may not be required if the entire removal-fill

area is assumed to be wetland. Generally, when temporary impacts are approved, monitoring is

required after the project to demonstrate that the acreage of wetland has been re-established.

Therefore, it may be in the best interest of the applicant to have an approved wetland

delineation to avoid having to re-establish more wetland acreage than what was originally

present.

Voluntary habitat

restoration projects:

DSL does not generally require a wetland delineation for voluntary habitat restoration projects

unless there is a risk that wetlands may be converted to upland or open water habitat as a result

of the project. For example, DSL may require a wetland delineation if:

• The project will add fill to the existing or original ground surface to create berms, dikes or

other water control structures. In these cases, the Department may require a wetland

delineation to determine the acreage of wetland conversion to upland and assess the

mitigation obligation.

• The project includes hydrologic manipulation that may reduce the acreage of existing

wetland. This can include direct effects to the wetlands being improved, as well as

indirect effects to surrounding wetlands.

• The project involves hydrologic manipulation, construction of a water control structure, or

excavation that may result in inundation greater than two feet. These projects may

expand or create open water areas that do not meet wetland criteria. In this case, DSL

may require a determination of any existing open water areas along with a post-project

wetland delineation to determine the final acreage of open water areas.

• The project places excavated material on-site. In this case, DSL may require a wetland

determination to show the proposed disposal area is upland.

Resources for Identifying Wetlands

Oregon’s wetlands are as varied as its landscapes and are not always easily

identifiable. They range from the typical cattail marsh to the seasonal wetlands that are

very dry in the summer. Many wetlands have been greatly altered by activities such as

farming and no longer “look like” wetlands, but still provide valuable ecosystem

services. DSL provides information and tools to assist in early identification of wetlands

in the Wetlands in Oregon fact sheet.

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National Wetland Inventory (NWI) Maps

The US Fish and Wildlife Service (USFWS) developed the NWI maps using aerial

photographs and the United States Geological Survey (USGS) 24K quads as base

maps. NWI maps are based on interpretation of high-altitude aerial photographs mostly

from the 1980s. Because of this, they have the following accuracy limitations and are

not sufficient for permitting:

• Most wetlands on the map are not field verified; although the maps are very

helpful, there are errors.

• The minimum required mapping resolution is two acres; many smaller wetlands

will not appear on the map.

• The mapped wetland is the approximate wetland location with respect to

geographic features such as roads.

• In most cases, no attempt was made to identify wetlands on agricultural lands.

• Many of the maps are old and may not reflect current conditions.

NWI maps are on the USFWS website. More information about the NWI can be found in

the About the National Wetlands Inventory fact sheet.

State Wetland Inventory (SWI) Map

The SWI map is a compilation of wetland inventories and other natural resource

mapping that identify approximate locations of wetlands and many waterways.

Currently, the SWI includes NWI mapping, identification of areas with Local Wetland

Inventories, USGS National Hydrography Dataset, and NRCS Soil Survey mapping. As

a result, the SWI web map gives users the ability to review all the maps together. This

reduces the probability of the SWI lacking a wetland or water that is present on the

ground, sometimes called “giving a false negative result." The SWI is updated on a

regular basis as new mapping becomes available.

Local Wetland Inventory (LWI) Maps

Many cities and a few counties have created LWIs for their urban growth boundaries or

other limited study areas. These inventories provide much more accurate information

about the presence of wetlands and waterways. But they

also have accuracy limitations and are not sufficient for

jurisdictional determinations and permitting requirements.

• Many wetlands are not field verified

• Wetlands smaller than one-half acre usually are not

identified

• The boundaries and location are approximate

• Some maps may not reflect current conditions

More information about LWIs and how to use wetland

inventories can be found here. Wetland mapping

information is also available on the Oregon Wetlands

Explorer.

National, state, and local

maps should only be used as

screening tools and not to

determine wetland boundaries.

Generally, if a wetland is shown

on either one of these maps, it

is very likely that a wetland is

there or was once there. The

maps cannot, however, be

relied upon to determine that a

wetland is not present.

4-6

Wetland Determinations Conducted by DSL

DSL provides an offsite wetland determination as a free service that may be helpful in

identifying wetland presence or absence on a project site. The Wetlands and Waters

Determination Request Form may be used to request that service. Also, upon submittal

of an application for local land use approval, the local government planning office is

required to submit a Wetland Land Use Notification (WLUN) to DSL. This gives the

Department the opportunity to provide feedback to the property owner and the local

government on the likelihood of wetlands. The WLUN is only required if the project

might impact a wetland mapped on the NWI, SWI, or LWI. Both services provide

information about the likelihood of wetlands on the property. Note that the off-site

wetland determination and wetland land use notice are screening tools and are only

preliminary jurisdictional determinations. While they are good tools for identifying the

presence of wetlands, they are generally not conclusive in determining the absence of

wetlands.

Wetland Studies Performed by Consultants

On-site wetland studies (determinations and delineations) are conducted by wetland

consultants. Usually, only an onsite wetland study can determine with certainty if

jurisdictional wetlands or other waters exist on a property and if so, their jurisdictional

boundaries.

A determination or delineation is not an official jurisdictional determination until it is

reviewed and concurred with by DSL. Initial review of delineation reports may take up to

120 days depending on the quality of the report and the complexity of the site.

Resources for Identifying Non-wetland Waters: Intermittent Streams and Ditches

Intermittent streams, ponds and ditches may require additional analysis to determine if

they are jurisdictional waters of this state.

A jurisdictional intermittent stream has two characteristics: it flows during a portion of

every year and provides spawning, rearing or food-producing areas for food and game

fish. Generally, if an intermittent stream is shown on a USGS map, it is jurisdictional. If

an intermittent stream is not shown on a USGS map additional analysis may be

required to distinguish it from an ephemeral stream or storm water drainage. DSL uses

several tools to make this distinction that are further explained in the intermittent

streams discussion in Chapter 2: When is a Permit Required?.

Ditches are another area where the determination of jurisdiction is complicated. A

waterway that looks like a ditch on the ground may really be a channelized jurisdictional

stream. And, even if it is a ditch that was constructed, it may still be jurisdictional. To

determine whether a ditch is a channelized stream requires evaluation of USGS maps

and historical aerial photographs. Generally, if a waterway is identified on a USGS map,

even if straightened and channelized, it is a stream and not a ditch. If the waterway is

not shown on a USGS map and was constructed, it may still be a jurisdictional ditch.

4-7

Guidance on determining the jurisdictional status of ditches is provided in Chapter 2:

When is a Permit Required?.

Retaining Professional Consultant Services

There are many types of consultants that offer their services to assist applicants through

the wetland delineation and removal-fill permit process. Most projects require some

level of assistance.

Why Hire a Consultant?

Depending on the scope of the project, consultant services may be needed for:

• Identification of wetlands and their boundaries: A wetland consultant has the

expertise to conduct an onsite wetland determination and delineation of the

project area. Conducting wetland determinations and delineations and producing

the required technical report requires training in the US Army Corps of Engineers

wetland delineation methods and detailed knowledge of DSL’s administrative

rules.

• Identification of non-wetland waters and their boundaries: Wetland

consultants and engineers are generally the most qualified to identify the

elevation of OHW and HMT. Consultants who are familiar with Oregon’s

regulations can also assist in the determination of jurisdictional intermittent

streams, ditches, artificially created wetlands, and other unusual situations.

• Engineered designs: Engineering consultants may be needed to design all or

portions of any given project. Project elements that frequently require

engineering design include stormwater management systems, fish passage for

in-water structures, large woody material placement and erosion control

structures.

• Mitigation plan preparation: If impacts to wetlands or waterways are proposed,

a mitigation plan must be included in the removal-fill permit application.

Preparation of a mitigation plan involves an assessment of wetland and

waterway functions and values anticipated to be lost by the removal-fill,

preparation of a plan to replace those lost functions and values, evaluation of

watershed needs, monitoring plans, and other elements. If a mitigation plan is

required, it is highly recommended that a consultant be used as this requires a

high level of expertise.

• Removal-fill permit application preparation: Consultants can assist with

preparation of application forms for removal-fill permits. Depending on the

complexity of the project, additional information may be required including

mitigation plans, erosion and sediment control plans, functions and values

assessments, and other studies.

4-8

How to Find a Consultant

DSL does not recommend or refer property owners to specific consulting firms, and,

there are no certifications or licenses required to be a wetland consultant. There are,

however, resources available to assist applicants with finding a consultant. DSL

maintains a Wetland Delineation Consultants Summary that quantifies the agency’s

interactions with consultants. The fact sheet, Wetlands in Oregon, that provides some

advice about working with wetland consultants. A list of certified Professional Wetland

Scientists who work in Oregon and Washington is also available from the Society of

Wetland Scientists - PNW Chapter.

The following tips may be helpful:

• Choose a consultant who has experience with project permitting in wetlands and

waterways and is familiar with the rules and regulations specific to Oregon. DSL

can tell you how many applications or wetland delineation reports the consultant

has successfully completed and the timelines associated with those approvals.

• Ask the consultant for references and check them.

• Ask the consultant about recent continuing education. The regulations and

methodologies change over time and a consultant who stays up to date on

training will be better prepared to submit applications and report materials.

• Ask the consultants about their most recent submittals and the timelines

associated with approvals.

• Ask the consultants about their working relationship with DSL. Although some

professional disagreements are expected, excessive negative attitudes about

DSL may be a sign that they have difficulty obtaining approvals.

Exploring Alternatives to Avoid and Minimize Impacts

In making a permit decision, DSL must consider the availability of practicable

alternatives with lesser or no impact and determine that the proposed project is

consistent with the protection, conservation, and best use of the water resource.

Therefore, applications must include an alternatives analysis. During the project

development phase, every reasonable opportunity to avoid and minimize impacts must

be explored.

Before an applicant explores alternatives, it is very

important to clearly articulate the purpose for the

project and create a list of project criteria. Once the

project criteria are developed, then alternative project

locations, site layouts, and construction methods can

be evaluated against the criteria to determine the

practicable alternative with the least impact and still

The term “practicable” is defined in

administrative rule to mean “capable

of being accomplished after taking

into consideration cost, existing

technology and logistics with respect

to the overall project purpose”.

4-9

accomplish the project purpose. An alternative is “practicable” only if it meets the project

criteria and includes the elements necessary to meet the project purpose and need.

It is very important that applicants record the decisions that led to the proposed project

to support the preferred alternative presented in the application. A detailed description

of how to conduct and document an alternatives analysis can be found in Removal-Fill

Guide Appendix E: Preparing the Alternatives Analysis.

In addition to receiving a permit, there are other incentives for developing a thorough

analysis of alternatives to minimize impacts:

• Expedited permit may be available: DSL has several General Authorizations

and General Permits (see Chapter 5: How to Apply for Authorizations) for certain

activities that involve minimal impacts and have expedited permit processing

timelines.

• Less mitigation is required: Mitigation requirements are directly proportional to

the level of impact and the quality of the resource that is proposed for impact.

Alternatives with less impacts result in reduced costs for mitigation.

• Less documentation is required: Projects with less impact will often require

commensurately less documentation of alternatives considered.

Exploring Alternative Project Locations

An applicant must explore available alternative project locations with less adverse

impacts to waters that could meet the purpose and need of the project. Some projects

are site-specific thus eliminating the need to consider alternative sites (e.g., repair of an

existing structure already located in wetland or waterway). In general, for the following

project types, alternative sites should be explored:

• Residential, commercial, and industrial developments

• New road crossings

• New recreational structures such as boat ramps and trails

• Gravel extraction

• New municipal utilities (e.g., water or wastewater facilities, substations)

Generally, it is not relevant to consider alternative sites for the following project types:

• Bank stabilization

• Replacement or improvement of existing in-water structures

• Transportation projects that involve realignment for safety or other site-specific

reasons

• Voluntary restoration projects

• Maintenance dredging; however, it is appropriate to consider alternative sites for

the disposal of the dredge material

4-10

Exploring Alternative Site Layouts or Configurations

Applicants must explore alternative site layouts that would reduce or eliminate impacts.

This may involve reducing the impacts to avoid waters by:

• Reconfiguring or reducing the number of proposed building lots

• Re-aligning roads

• Re-aligning utilities and other infrastructure

• Re-orienting buildings

• Reducing the building or parking lot size

• Reducing the treatment area (for stream bank stabilization projects)

• Reducing the size of over-water structures, such as docks and boardwalks

In general, all project types, except for voluntary restoration projects and maintenance

of existing structures, should have documented alternatives to reduce or eliminate

impacts.

Exploring Alternative Construction Methods

Applicants must consider strategies that would result in further minimization of impacts

by using methods such as:

• A bridge instead of a culvert for a stream crossing

• Bioengineering for bank stabilization, instead of rip-rap

• Directional boring instead of trenching for utility lines

• Boardwalks instead of asphalt for trails and other structures

• A suction dredge instead of a clamshell dredge for dredging

Other Helpful Hints for Exploring Alternatives

• Use natural resource areas as an amenity: Sometimes the project can be

designed to include natural resources as an amenity to add value to the

development.

• Consider variances to address local ordinances: Local ordinances may

include certain elements, such as density requirements or road alignments in

transportation plans. Frequently, wetlands and waterways were not considered in

the development of these plans. While some of these requirements are

mandatory, there is often some flexibility. Applicants should explore opportunities

to obtain variances to local ordinances when appropriate. Layouts preferred by a

local agency or shown on Master Plans may not be approved by DSL.

• Document all the alternatives that are considered: Applications for removal-fill

permits must include documentation of all the alternatives that were explored and

reasons why the proposed project is the practicable alternative with the least

impacts. For this reason, it is very important to record all the decisions that are

made during the development of the proposed project.

4-11

Planning to Mitigate for Unavoidable Impacts

Compensatory mitigation is required to compensate for those impacts to wetlands and

waterways that are unavoidable. A mitigation plan must be developed to address the

ecological characteristics (functions) and societal benefits (values) of the wetland or

waters that will be lost. Functions and values assessments help to evaluate lost

functions and values and develop a mitigation strategy to replace them. Compensatory

Mitigation is detailed in Chapter 8 and provides direction, including a description of

functions and values assessment methods and their application, for waterways and

wetlands respectively.

Options for Providing Mitigation

The options include permittee-responsible on-site or off-site restoration, creation, or

enhancement, and purchase of mitigation credits. In developing a mitigation strategy,

the following must be addressed:

• Functions and values lost must be replaced

• Mitigation must provide local replacement for locally important functions and

values

• Mitigation should be self-sustaining and minimize long-term maintenance needs

• Mitigation must be sited in an ecologically suitable location

• Mitigation must minimize temporal loss

If approved, mitigation sites must be monitored to document their successful

establishment. Monitoring is usually for a period of five years or until the site is deemed

successful.

Considerations for Permittee-responsible Mitigation

There are several things applicants should be aware of before choosing to do their own

mitigation:

• Building, monitoring, and maintaining a mitigation site is expensive.

• The permittee is responsible for implementation and success of the mitigation

unless the permit is officially transferred by DSL. Third-party arrangements to

provide mitigation are not recognized by DSL. The mitigation obligation is not

transferred through property transactions.

• The permittee is responsible for monitoring the success of the mitigation site until

it is officially released by DSL, which is usually at least five years.

• The permittee must retain control of the property for monitoring, maintenance

and conducting remedial actions, until the site is officially released by DSL.

• The permittee is responsible for making arrangements for long-term protection

and stewardship of the mitigation site.

• Mitigation sites are required to meet certain performance standards. In approving

a mitigation plan, DSL does not guarantee the success of mitigation. If the

mitigation is not successful, the permittee will be obligated to correct it or conduct

mitigation at a new location.

4-12

Pre-design Permit Scoping: Identifying Other Permits and Their

Requirements

Almost always there are other local, state, and federal agencies that require permits or

approvals for projects in wetlands or waterways. Each of these permits has their own

set of requirements. It is highly advised that the applicant conduct research to identify all

other permits and the requirements for each of those permits before designing the

project. Conducting early scoping will:

• Eliminate surprises that cause project delays

• Reduce the costs of having to redesign a project

• Allow for more flexibility in the management of the various permit processes and

their timelines

• Allow the applicant and others to understand the limitations posed by various

permit requirements

The following list provides a short description of the agencies that may need to be

contacted and the types of permits or approvals that may be needed for a project.

US Army Corps of Engineers

Generally, most projects that require a state removal-fill permit will also require a permit

from the Corps. (Note: the Corps and DSL use the same joint application form for most

projects but issue separate permits.) If a Corps permit is required, the following

agencies may also be involved.

• Oregon Department of Environmental Quality: A Water Quality Certification

from DEQ is required for most Corps permits.

• National Marine Fisheries Service: If there are federal Endangered Species Act

(ESA) listed anadromous fish or marine mammals that may be affected,

consultation with NMFS may be required as part of the Corps permit process.

• US Fish and Wildlife Service: If there are other federal ESA-listed plants or

animals affected by the project, consultation with USFWS may be required as

part of the Corps permit process. For non-ESA listed species, USFWS may

provide additional, advisory input on the project through the Fish and Wildlife

Coordination Act or the Migratory Bird Treaty Act.

• Oregon Department of Land Conservation and Development: If the project is

located in the coastal zone, a coastal zone certification from DLCD may be

required as part of the Corps permit.

Other State Agencies

The following state agencies may need to be contacted to address specific project

components.

• Oregon Department of Fish and Wildlife: ODFW may be consulted to help

assess project effects on fish and wildlife. If work in a stream that contains fish is

4-13

proposed, ODFW will need to confirm that fish passage requirements are met.

Also, if isolation of the work area within a stream is required, a scientific take

permit may be required for fish salvage. Approval for a passage plan may be

required even if no removal-fill permit is required.

• Oregon Department of Environmental Quality: For ground disturbance of one

acre or more, a National Pollution Discharge Elimination System (NPDES) permit

may be required from DEQ to manage construction-related storm water at the

site.

• State Historic Preservation Office: An archeological survey and sign-off from

SHPO may be required for project sites that may have cultural resources.

• Oregon Water Resources Department: If storage or use of surface or ground

water is proposed, a Water Right may be required from OWRD.

• Oregon State Marine Board: If the project involves a dock or other structure in

the waterway, OSMB may need to be consulted to address boater safety

requirements.

• Oregon Parks and Recreation Department: If the project involves activities on

the beach, an Ocean Shore Permit may be required from OPRD. If a project is

located in a State Scenic Waterway, a separate State Scenic Waterway review

may be required.

The Water-Related Permits User Guide provides a more detailed description of other

state water-related permit requirements.

Tribal Governments

The Department is committed to protecting cultural and natural resources, including

engagement with the nine federally recognized Tribes in Oregon. All of Oregon is Indian

Country and proposed project sites may have significance to one or more Tribes within

Oregon. Removal-fill permit applicants may need to work with one or more of Oregon’s

Tribes may be needed to protect cultural and natural resources. This engagement may

be initiated through an applicant’s direct contact with Tribal cultural resources staff, as

the result of a State Historic Preservation Office directed cultural resources survey, or

as the result of a removal-fill application comment period.

Local Government Permits

Most projects need a permit from the governing city, county, or regional government.

Each local government is different, but the following types of permits are usually

required for the following situations:

• A grading permit is required for most ground disturbance

• A development permit is required for subdivision and commercial developments.

• A building permit is required for structures

• A floodplain or floodway permit is required if the project is within the floodplain or

floodway

• Many communities have natural resource protection areas and may require some

type of natural resource overlay permit

4-14

• Depending on whether the local government has a regional stormwater collection

and treatment system, the applicant may be required to conduct a stormwater

analysis and provide on-site stormwater treatment

Pre-application Meetings

As staff resources allow, DSL can offer pre-application meetings. These meetings are

offered at no charge.

A pre-application meeting with DSL provides an opportunity:

• For DSL staff to become familiar with the project

• To identify alternatives with lesser impacts to wetlands or waterways

• For all agencies and the applicant to share information about the various

application requirements and processes

• To identify the mitigation requirements

Types of projects where a pre-application meeting is recommended:

• Projects that will likely involve water-related permits from multiple agencies

• Projects that involve wetlands or waters with high resource value

• Projects with a high level of community interest

• Large projects with multiple impacts to natural resources

• Projects that involve permittee-responsible mitigation

DSL services that can be provided during a pre-application meeting:

• Identifying OHW or HMT (wetland boundaries are confirmed through review of

the wetland delineation report)

• Identifying permit exemptions that may apply

• Determining which type of DSL permit is appropriate

• Explaining the application process and timelines

• Identifying issues that will need to be addressed in the application

• Reviewing alternative designs to minimize and avoid impacts

• Reviewing the conceptual mitigation plan

Where to meet: Pre-application meetings may take place at the project site or in an

office, depending on the nature of the project and the agencies involved. Often DSL can

efficiently perform pre-application meetings in an office or by phone. Contact the

Aquatic Resource Coordinator to determine what is appropriate for your project.

Identify the requirements for all permits needed. Once the list of permits needed for a

project is developed, it is important to identify all the requirements of those permits. An

experienced consultant can assist with this task. The efforts expended on this step will

avoid costly redesign and project delays.

4-15

When to request a pre-application meeting: If the project is in the very early stages,

there may not be enough information to facilitate effective feedback from the agencies.

Conversely, if the project design is locked in, the opportunity for effective input from the

agencies regarding alternatives and other permitting criteria is lost. The pre-application

meeting should be scheduled at the conceptual design stage: when the project purpose

and need, criteria and the range of alternatives has been identified. Preferably, after the

wetland and other waterways have been identified, and before the final design has been

established.

What should the applicant bring: To get the most out of a pre-application meeting the

applicant should be prepared to discuss:

• The purpose, need and criteria for the project

• Conceptual project and mitigation plan drawings

• Alternative designs and locations that were considered

• The location of the OHW or HMT and wetland boundaries

Who should be invited: DSL may suggest that other local, state, and federal agency

staff attend the meeting, but it is ultimately up to the applicant to determine who will be

invited. Arrangements for the meeting and inviting other agency staff are the

responsibility of the applicant.

To assist applicants with large-scale permitting needs, the state and federal agencies

involved in aquatic resources permitting have set up a schedule of regular monthly

meetings. This service is intended to provide early coordination meetings for complex

projects. The intent of the meetings is to provide meaningful comment and feedback to

prospective applicants to inform their preparation of permit applications. More information

on this service is available here.

5-1

Chapter 5: How to Apply for Authorizations

Chapter Overview

This section describes the different types of removal-fill authorizations available, how to

choose and fill out the required application forms, and how to submit the application and

required fees.

Types of Authorizations

There are several types of permits available to conduct work in waters of this state:

• Individual Permits (IPs) are issued for projects that do not qualify for a General

Authorization or General Permit or have more than minimal impacts to wetlands

or waterways.

• General Authorizations (GAs) are an expedited process for seven specific types

of removal-fill activities that have minimal adverse effects.

• Notification for Certain Voluntary Habitat Restoration Projects are exempt

activities that require notification to DSL at least 30 calendar days prior to

commencing the activity. These activities are Ditch and Drain Tile Removal;

Placement of Large Wood, Boulders and Spawning Gravels; and Other Activities

Customarily Associated with Habitat Restoration in ESH.

• General Permits (GPs) authorize a group of activities that are substantially

similar in nature, recurring or ongoing, and have predictable effects and

outcomes. DSL currently has six GPs available for use by the public.

• Emergency Permits (EPs) are rapid-approval authorizations for emergencies

that pose a direct and immediate threat to human health, safety, or substantial

property, where prompt action is required to address the threat.

• Permit Waiver (PW) for DEQ sponsored remedial actions.

Completing the Application Forms

The Joint Permit Application form (JPA) is used to apply for IPs, GPs, and PWs. The

Emergency Permit Application is for activities that qualify for EPs. The General

Authorization Notification Form is used to apply for a GA. The Notification for Certain

Exempt Voluntary Habitat Restoration Projects Form is used for the voluntary projects

that require notification. The level of detail required for the application form will vary

depending on the scope and nature of the impact to wetlands or waterways, level of

public interest, and other factors that increase the complexity of the project.

Application Fees

Fees for IPs, GPs, and PWs are based on whether the applicant is a public, private or

commercial entity and the volume of removal or fill according to a fee schedule. GAs

sometimes require a flat fee of $250 if the volume is more than 50 cubic yards.

Authorization for voluntary restoration and erosion-flood repair are free of charge,

regardless of the authorization type.

5-2

Types of Permits

DSL’s administrative rules offer several permit types for authorizing projects in wetlands

and waterways.

• Individual Permit (IP)

• General Authorization (GA)

• Notification for Certain Voluntary Habitat Restoration Projects

• General Permit (GP)

• Emergency Permit (EP)

• Permit Waiver (PW)

The type of authorization depends primarily on the scope and nature of the impact

proposed.

Individual Permits

IPs are issued for projects that have the following characteristics:

• They have more than minimal adverse effects to waterways and wetlands

• They are more complicated and often involve more than one removal-fill activity

• The impacts may involve a substantial mitigation obligation

• They do not qualify for any of the GAs or GPs

To apply for an IP, the JPA must be submitted to DSL. The IP process can take up

to 120 days. (See Chapter 6: Processing the Removal-Fill Permit Application for

more information on the IP timelines.)

General Authorizations

GAs have been developed as an expedited process for seven specific removal-fill

activities. GAs have the following characteristics:

• They are developed through administrative rule which lists the eligible activities,

mandatory requirements, and conditions for authorization

• They are developed for activities that result in only minimal adverse effects to

waters of the state

• They are not available for projects conducted in State Scenic Waterways

(SSW)

• They are not available for projects conducted in Aquatic Resources of Special

Concern, except for the Waterway Habitat Restoration GA and Wetland

Ecosystem Restoration GA

• They are not available for projects conducted in the Willamette River between

river miles 1.9 and 11.8

Other than for placer mining, to apply for a GA, submit the General Authorization

Chapter 5: How to Apply for Authorizations

5-3

Notification Packet to DSL. Within 30 days of receipt of the notification form, DSL will

determine if the notice is complete and whether the project is eligible for a GA.

(See Chapter 6: Processing the Removal-Fill Permit Application for more information on

the GA timelines.)

Following is a brief description of each GA and a link to the administrative rules that

contain more information on eligibility, mandatory requirements and authorization

conditions. These descriptions are offered as summaries only. Before submitting a GA

notice, applicants are advised to review the applicable administrative rule for all

eligibility criteria, standards and conditions associated with the specific GA.

Minimal Disturbance within ESH

What is it for?

•

Investigative drilling and sampling

•

Scientific measurement devices

•

Surveys for historic resources

•

Maintenance and reconstruction of in-water structures

•

Beaver pond levelers and exclusion devices

Key

eligibility

criteria

The volume of removal-fill activity is limited to no more than four

cubic yards at any individual site and cumulatively not more than

10 cubic yards for the entire project.

Application fee $0

Additional

resources

OAR 141-089-0660 et seq. for complete description of criteria,

standards, and conditions

Over-Water Structures Fill and Removal

What is it for?

Placement and removal of certain over-water structures, piling

and anchors including: residential docks; existing non-residential

docks; seasonal public recreation structures; navigational aids;

and, derelict piling removal.

Key

eligibility

criteria

•

Residential docks must be consistent with ODFW Residential

Dock Guidelines

•

Existing non-residential docks are limited to replacement of

no more than 10 piling and no increase in the dock’s over-

water footprint

•

Seasonal public recreation structures must be removed within

30 days of the end of the seasonal use; no more than 4 cy. of

anchor

•

Navigational aids are limited to no more than 10 piling placed

and 10 piling removed per project

•

Derelict piling removal is limited to no more than 50 piling per

project

5-4

Application fee $0 if less than 50 c.y.; $250 if greater than or equal to 50 c.y.

Additional

resources

•

OAR 141-089-0680 et seq. for a complete description of

criteria, standards, and conditions.

•

ODFW Residential Dock Guidelines

Temporary Impacts to Wetlands and Waterways

What is it for?

Temporary placement or removal of material in tidal and non-

tidal wetlands and waterways.

Key eligibility

criteria

• Temporary impacts to non-tidal wetlands cannot exceed 0.5

acres; tidal wetland impacts cannot exceed 0.2 acres

• Temporary impacts to wetlands must be rectified within 12

month or before expiration of the GA, whichever is first

• Temporary impacts to waterways are limited to work area

isolation (100 feet maximum length) and spud piles for over-

water work platforms.

• Temporary impacts to waterways must be rectified

immediately upon project completion or before expiration of

the GA, whichever is first

• Submittal of a rectification monitoring report to DSL is

required

Application fee $0 if less than 50 c.y.; $250 if greater than or equal to 50 c.y.

Additional

resources

OAR 141-089-0700 et seq. for a complete description of criteria,

standards, and conditions.

Waterway Bank Stabilization Using Bioengineering

What is it for?

Stabilizing eroding waterway banks using natural materials.

Key eligibility

criteria

• Activities may be conducted in tidal or non-tidal waterways

• Bank stabilization techniques are limited to:

o Bank terracing, sloping, and reshaping

Placement of large wood (downed trees and rootwads) on

the bank

o Log toe placement

• Large wood/log species must be native to the project area

• Rip-rap and rock toes are not allowed

• The activity cannot create new uplands or reestablish lost

uplands resulting from the bank erosion event(s)

Application fee $0

Additional

resources

• OAR 141-089-0720 et seq. for a complete description of

criteria, standards, and conditions.

• Washington Integrated Streambank Protection Guidelines

Waterway Habitat Improvement

5-5

What is it for?

Activities with the effect of improving functions and values of

aquatic habitat and facilitating species recovery in waterways

Key eligibility

criteria

• Removal of artificial barriers ≤ 200 c.y., cumulative

• Grade control structures that mimic natural material found in

the system and ≤ 100 c.y. for every 0.5 miles of waterway

• Fish and wildlife passage structures ≤ 100 c.y. for every 0.5

miles of waterway

• Fish screening structures ≤ 100 c.y., cumulative; requires

ODFW design criteria

• Low-profile porous weirs ≤ 100 c.y. for every 0.5 miles of

waterway and less than 40 percent of the channel width

• Remove, modify, repair, or replace culverts and tidegates for

fish passage (when not otherwise exempt)

• Habitat logs, beaver dam analogs, and post-assisted log

structures ≤ 100 c.y. for every 0.5 miles of waterway

• Engineered log jams not more than 20 percent of waterway

bankfull width

• Maintenance and reconstruction of existing, man-made habitat

structures

Application fee $0

Additional

resources

• OAR 141-089-0780 et seq. for complete description of criteria,

standards, and conditions

• Guide to Placing Large Wood and Boulders (DSL/ODFW 2010)

Wetland Ecosystem Improvement

What is it for?

To return natural or historical functions to a disturbed or altered

wetland.

Key eligibility

criteria

• The project purpose must be to repair or return natural

historic functions, and not to augment functions that did

not exist

• The project must be compatible with watershed and water

quality management plans

• Evidence of wetland alteration or disturbance is required

• Conversion of wetlands to uplands is not allowed

• Must not convert of existing, functional wetland ecosystems to

another aquatic use

• The project does not introduce non-native plants

• The hydrologic manipulation must approximate

conditions before disturbance

• Projects cannot be for compensatory wetland mitigation

• When berms are combined with shallow excavations the

maximum depth of inundation must not exceed two feet

5-6

Application fee $0

Additional

resources

• OAR 141-089-0800 et seq. for complete description of criteria,

standards, and conditions

Non-motorized In-stream Placer Mining in ESH

What is it for?

Non-motorized in-stream placer mining disturbing <25 c.y. per

year within ESH

Key eligibility

criteria

•

Only non-motorized methods are allowed. Non-motorized

methods include gravity and siphon dredges

•

The activity may not occur within a State Scenic Waterway

•

If the operator was authorized in the preceding year, an In-

stream Placer Mining Report must have been submitted

•

The inside diameter of any intake nozzle or hose must be ≤ 4

inches

•

Permanent dams may not be constructed; temporary dams

cannot extend across more than 75% of the surface water and

must be consistent with ODFW requirements

•

The activity is not allowed outside of the wet perimeter

•

Disturbing the streambank is not allowed

•

Undercutting or eroding banks and removal or disturbance of

boulders, rooted vegetation or embedded woody material and

other habitat structure from the bank is prohibited

•

Creation of new access routes that disturb or destroy woody

riparian vegetation is not allowed

•

All piles must be leveled and furrows, potholes and

depressions filled when done

•

Submittal of an annual report to DSL by February 28 of the

following year is required

•

Freshwater mussels and Pacific lamprey must be avoided.

Operation of any motorized equipment is prohibited below

ordinary high water

Application fee

Additional

resources

•

Navigate to Placer Mining Permits under: Step 3: Apply for

a removal-fill permit

•

OAR 141-089-0820 et seq. for complete description of

criteria, standards, and conditions

5-7

Notifications for Certain Voluntary Habitat Restoration Projects

Three types of habitat restoration activities are exempt from permitting but still require a

submittal of a notification to DSL. See OAR 141-085-0534 for a complete description of

these and all other exempt habitat restoration activities.

In addition to being limited to the activities as described, the following requirements

must also be met:

• Not in State Scenic Waterways (except as allowed by ORS 390.835(5))

• Conducted during the ODFW recommended in-water timing guidelines (unless

approved in writing by ODFW)

• Conforms to ODFW fish passage requirements (ORS 509.580 through 509.910),

• Will not convert waters of this state to uplands

• Will cause only minimal impact on waters of this state

• Will not result in flooding or other damage to property off the project site

• All necessary access permits and other approvals have been obtained

Ditch and Drain Tile Removal

What is it for?

Disruption or removal of subsurface drainage structures (e.g., drain tiles)

and plugging or filling of drainage ditches in wetlands

Key eligibility

criteria

• Notification must be submitted at least 30 days before work

Fee $0

Additional

resources

• Notification Packet

Placement of Large Wood, Boulders and Spawning Gravels

What is it for?

Placing large wood, boulders and spawning gravels for habitat

Key eligibility

criteria

• Must be consistent with the Guide to Placing Large Wood and Boulders

(DSL/ODFW 2010) If the project is in ESH or exceeds 50 cubic yards

removal-fill, notification must be submitted at least 30 days before work

Fee $0

Additional

resources

• Notification Packet

5-8

Activities Customarily Associated with Habitat Restoration in ESH

What is it for?

Habitat restoration activities in ESH

Key eligibility

criteria

• Must be less than 50 cubic yards removal-fill

• Must be consistent with the Oregon Aquatic Habitat Restoration and

Enhancement Guide

• Utilize materials naturally at the project site

• Notification must be submitted at least 30 days before work

Fee $0

Additional

resources

• Notification Packet

General Permits

GPs authorize a group of activities that are substantially similar in nature, recurring or

ongoing, and have predictable effects and outcomes. GPs have the following

characteristics:

• They may be issued for a specific activity or multiple activities that are

substantially similar in nature, recurring or ongoing

• Except for Maintenance Dredging GP, they may only be issued for a period of up

to five years and are not renewable beyond five years

• The activities must have predictable outcomes and the adverse effects must be

identified and accompanied by defined strategies for mitigation of those effects

• They have specific criteria and conditions

• They are issued by administrative rule and projects are given authorization for

conducting the activity under the administrative rule

Following is a brief description of current GPs

adopted by rulemaking with a link to the

administrative rule that contain specific information

on eligibility, mandatory requirements, and

authorization conditions. These descriptions are

offered as summaries only. Before applying for a

GP, applicants are advised to review the

applicable administrative rule for all eligibility

criteria, standards and conditions associated with

the specific GP.

A second type of GP is a General

Permit issued by an Order of the

agency. These GPs are issued to

a specifically named applicant or

group of applicants to cover

activities that are substantially

similar in nature, are reoccurring

or ongoing, and have predictable

effects and outcomes. They are

not identified in administrative rule

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Transportation-Related Structures

What is it for?

•

Widening, replacing, expanding use, maintaining and removing

existing roads, bridges, pedestrian paths, culverts, boat ramps,

and airport runways and taxiways

•

Activities integrally related with existing roadway structures

•

Increasing scour protection associated with transportation-related

structures

•

Restoring fluvial processes for stream health and fish and wildlife

habitat/passage in conjunction with transportation-related

structures

•

Installing associated grade control

•

Projects must involve ≤ 5,000 cy of material filled, removed, or

altered in non-wetland waters, including ≤ 1,000 cy for streambank

stabilization

•

Wetland impacts are limited to ≤ 0.5 acre

•

Work area isolation required

•

Impacts to Aquatic Resources of Special Concern (see Appendix

F) are excluded

•

Concurrence of the wetland boundary must be obtained before the

application is submitted, unless otherwise approved by DSL

•

Compensatory mitigation must consist of bank credit purchase, in-

lieu fee or payment in-lieu unless otherwise approved by DSL

•

Projects that meet certain requirements will not require

compensatory mitigation, and the applicant may use best

professional judgment to assess functions and values

Key eligibility

criteria

Application fee Current fee schedule

Additional

resources

• OAR 141-93-0140 et seq. for complete description of criteria,

standards, and conditions

• State Water-Related Permits User Guide –

Section 3.4

Minor Removal-Fill Impacts to Certain Non-tidal Wetlands

What is it for?

Small removal-fill activity in certain non-tidal wetlands

Key eligibility

criteria

• Removal-fill activity is limited to 0.2 acres within wetlands

• Impacts to tidal wetlands not allowed

• Impacts to non-wetland waters not allowed

• Impact to wetlands in ESH and State Scenic Waterways is not

allowed

• Impacts to Aquatic Resources of Special Concern are excluded

• Mitigation must consist of bank credit purchase, in-lieu-fee or

payment- in-lieu unless otherwise approved by DSL

Application fee Current fee schedule

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Additional

resources

•

OAR 141-093-0155

et seq

. for complete description of criteria,

standards, and conditions

Vernal Pool General Permit

What is it for?

•

Impacts to vernal pool wetlands, and other specific waters,

located in Jackson County.

Key eligibility

criteria

•

Impacts to vernal pool wetlands and other waters must be less

than two acres and no more than 15 acres of impact to a vernal

pool complex (including the upland mounds between the pools).

•

Mitigation must be accomplished by either purchase of mitigation

bank credits or permittee-responsible mitigation that involves

protection or restoration. Wetland enhancement and creation are

not allowed.

•

The amount of mitigation required to offset impacts depends on

base mitigation ratios and multipliers related to the quality of the

vernal pools to be impacted.

•

Mitigation site suitability is based on size, function, buffers. fairy

shrimp presence, and the presence of an intact hardpan.

Application fee Current fee schedule

Additional

resources

• OAR 141-93-0180 et seq. for complete description of criteria,

standards, and conditions

• Vernal Pool General Permit Mitigation Performance Standards

and Monitoring Methods

Maintaining Drainage to Protect Agricultural Land

What is it for?

•

Removal of material from waterways for the purpose of

maintaining drainage to protect agricultural land and, as

necessary, disposal of material in adjacent converted wetlands.

Key eligibility criteria

•

Land use must be agricultural land.

•

Excavation must be limited to the minimum amount necessary

to maintain drainage. Channel relocation not allowed.

•

Up to 100 c.y. of fill

•

No more than 100 c.y. removal below ordinary high water line or

highest measured tide line per landowner per calendar year.

•

Placement of excavated material in adjacent converted

wetlands cannot result in permanent conversion from wetland to

upland.

•

Cannot be used in State Scenic Waterways.

Application fee $0

Additional resources

• OAR 141-93-0220 et seq. for complete description of criteria,

standards, and conditions

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Navigational Access Maintenance Dredging

What is it for?

•

Removal of material from waterways for the purpose of

navigational access maintenance dredging.

Key eligibility

criteria

•

Must be for maintenance dredging.

•

Dredging was previously authorized and executed within the

last 15 years.

•

Removal is limited to the previously authorized prism.

•

Fill is limited to temporary placement of equipment and disposal

in the flowlane or in certain ocean locations.

•

Flowlane disposal is limited to areas with sufficient velocity and

depth to disperse the material and not cause shoaling.

•

Removal of material must be by means of hydraulic pipeline

dredge or closed bucket, unless otherwise approved

•

Cannot be used in State Scenic Waterways.

Application fee Current fee schedule

Additional

resources

• OAR 141-93-0250 et seq. for complete description of criteria,

standards, and conditions

Certain Ocean Renewable Energy Facilities

What is it for?

•

Placement and removal of certain ocean renewable energy

facilities for research or demonstration projects in the territorial

sea.

Key eligibility

criteria

•

Must be for research project or demonstration project only

•

Must have a recommendation from the Joint Agency Review

Team for processing under this General Permit

•

Must be located within a Territorial Sea Plan designated:

Renewable Energy Facility Suitability Study Area;

Renewable Energy Permit Area; or,

Resources and Uses Management Area

•

Must not involve ocean offshore wind power generation

•

Removal and fill must be only within the territorial sea between

extreme low tide elevation and three geographic miles

•

Must not exceed 53 contiguous acres per project, measured as

the surface expression of a vertical column between the ocean

surface and the ocean floor

Application fee Current fee schedule

Additional

resources

• OAR 141-93-0285 et seq. for complete description of criteria,

standards and conditions

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Emergency Permits

DSL may provide rapid permit approval for emergencies that pose an immediate and

direct threat to human health, safety, or property where prompt action is required to

address the threat. The proposed action must be the minimal amount necessary to

address the threat and DSL may require modifications to the project after the

emergency has passed. To apply for an Emergency Permit, use the Emergency

Application form. See Chapter 7 for more detail about Emergency Applications.

Permit Waivers

Permit waivers are available for remedial actions conducted on a site selected or approved

by DEQ and require removal-fill activity (ORS 465.315). The responsible party must notify

DSL of the intended action using the Joint Permit Application form, pay applicable

application fees, and comply with the substantive requirements provided by DSL in the

waiver document.

JPAs for these projects generally do not require county signature, alternatives analysis,

landowner signature, incumbency certificate, local land use signature, or identification of

adjacent landowners. These items are not required because the project is reviewed

under DEQ’s over-arching authority and process. Typically, compensatory mitigation is

not required for remedial actions since the objective of the project is environmental

improvement. However, there may be cases where a compensatory mitigation

requirement may be appropriate to offset adverse effects to aquatic habitat that the

remedial action itself may cause (e.g., bed or bank hardening). A potential requirement

for compensatory mitigation must be discussed with the DEQ project manager.

The waiver documentation is sent to the responsible party and the identified DEQ project

manager for inclusion in DEQ’s Record of Decision. The conditions contained in the waiver

document remain enforceable by DSL. Annual renewal of waiver documents is not required

after issuance.

Completing the Application Forms

Which Forms to Use

The following table lists which forms to use for the various types of permits. Application

forms are found here.

Type of Permit or Authorization

Form to Use

Individual Permit (IP)

Joint Permit Application (JPA)

General Permit (GP)

Joint Permit Application (JPA)

General Authorization (GA) and Certain

Voluntary Habitat Restoration Projects that

Require Notification

GA Notification Form / Notification for

Certain Exempt Voluntary Habitat

Restoration Projects form

Placer Mining GA

On-line form

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Emergency Permit (EP)

Emergency Permit Application

Permit Waiver (PW)

Joint Permit Application (JPA)

Level of Application Detail May Vary

The level of detail required for applications will vary depending on the degree of adverse

impacts, the level of public interest, and other factors that increase the complexity of the

project. The applicant is responsible for providing sufficient detail in the application to

enable DSL to render the necessary determinations and decisions. For example, a

greater level of application detail is typically warranted for projects with impacts to:

• High quality aquatic resources, in terms of locally important functions, and

values, condition, or rarity

• Estuarine waters

• Large wetland areas (≥ 2 acres)

• Aquatic features with connectivity to other protected or special management

natural resources

• Aquatic Resources of Special Concern

• Locally designated significant wetlands

Helpful Hints for Completing Applications

When preparing the application forms, the following points should be kept in mind to

facilitate the process:

• It is important applicants always access the DSL website to use the most up-to-

date application form.

• Information in the application must be presented so a person unfamiliar with the

project or site can understand the proposed project.

• Not all items on the application form will apply to all projects (e.g., some projects

may not require a disposal area).

• To facilitate review, the information should be presented in the required blocks on

the application forms. If all the information does not fit in the block of the form, a

summary should be inserted into the form and detailed information included as

an attachment being sure to follow the application template. Supplemental or

supporting documents, such as functions and values assessments or mitigation

plans, should be included as attachments.

• Extraneous information slows the review process and should not be submitted as

part of the DSL Removal/Fill application. Examples of extraneous information:

copies of local comprehensive plans or ordinances, DSL regulation citations,

wetland delineation report, biological assessments, archeological reports,

stormwater calculations, geotechnical reports, marketing reports, contract

agreements, applications for other agencies, contractor or construction

specifications, extraneous drawings, and redundant information.

• Wetland delineation reports should be submitted separate from the application as

indicated on the wetland delineation report cover sheet for review by the

Jurisdictional Coordinator. If the delineation is already approved, attach only the

concurrence letter with the approved map.

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• Use tables and bullets whenever possible to display complicated information.

• Limit the area and volume calculations to the tables and figures.

• If submitting the application in paper form, do not bind or use section dividers.

They are not necessary and require additional handling.

•

The Joint Application Checklist - Completeness and Compensatory Mitigation

Plan Checklist should be used as a final check of required items. The checklists

can be found on here.

Electronic Submittal of Applications

The following application types and other supporting documents can now be submitted

electronically. If submitting electronically, a paper copy should not be additionally

submitted.

• Joint Permit Application for IPs and GPs

• Emergency Permit Application

• Notification for General Authorization

• Application for General Permit to Maintain Drainage for Protection of Agricultural

Lands

• Notification for Certain Exempt Voluntary Habitat Restoration Projects

• Monitoring Reports

Instructions for submitting forms electronically can be found here.

Joint Permit Application Instructions

The following instructions are for filling out the JPA form.

Block 1: Types of Permits

Corps: Check the box that identifies the type of permit you are seeking from the Corps.

DSL: Check the box that identifies the type of permit you are seeking from DSL.

If you leave this section blank DSL will generally process your application as an

Individual Permit.

Block 2: Applicant and Landowner Contact Information

Applicant: The applicant’s name, official mailing address, phone numbers, fax, and e-

mail address must be entered. The applicant must sign the permit application and

become the permit holder. The person that is listed as the applicant must have full

authority and responsibility to comply with the conditions of the permit.

• If the applicant is a partnership or corporation, the legal name of the entity (as

registered with the Business Registry of the Secretary of State (SOS)) and the

name of the individual who has authority to encumber the business entity must

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be entered exactly as listed on the SOS website. In addition, the applicant must

fill out and submit an Incumbency Certificate.

• If the applicant is a business, government agency, or other organization, the

name, phone number and e-mail address of the contact person must be

included.

• The person listed as the applicant or applicant’s contact must also sign Block 13

of the JPA.

Authorized agent: The authorized agent (consultant

or contractor) is someone who has the permission of

the applicant to provide information to DSL and

negotiate permit conditions on behalf of the applicant.

DSL will work directly with the agent during the

application review and permitting process to resolve

technical issues. Formal correspondence will be sent

to the applicant but informal correspondence to resolve

technical issues may only be sent to the authorized

agent. The authorized agent must also sign Block 13

of the JPA.

Property owner: If the applicant is not the owner of the property on which the project or

mitigation is proposed, landowner information must be listed. Generally, landowner

signature is required on the application unless there is an easement allowing the

activity, or a written authorization is provided from the landowner consenting to the

proposed project. However, applications for GPs do not require a landowner's

signature in Block 13 of the JPA.

Authorized agents and permit

compliance: Authorized agents

are not responsible for complying

with permits. It is very important

that applicants and authorized

agents communicate regarding all

aspects of the permit process and

permit conditions before

implementing the project.

Linear facility projects: A “linear facility” includes any project from applicants with condemnation

rights for railway, highway, road, pipeline, water or sewer line, communication line, overhead or

underground electrical transmission or distribution line, trail or similar facility. Typically, a linear facility

will involve alignments with multiple landowners and multiple removal-fill sites. For linear facilities,

landowner signature is not required at any point in the process. However, for new alignments, all the

landowners along the entire alignment must be identified in the application, regardless of whether the

applicant has landowner permission or whether there are removal-fill activities proposed for that

location. In addition, landowners whose land is adjacent to those properties within the alignment must

be identified. For an existing alignment, only landowners directly affected by removal-fill activities

and landowners adjacent thereto must be identified.

The Department will impose a permit condition that specifies the removal-fill activity cannot occur until

the person obtains:

• The landowner’s consent; or

• A right, title or interest with respect to the property that is sufficient to undertake the removal

or fill activity; or

• A court order or judgment authorizing the use of the property

5-16

Mitigation site property owner information: If the applicant is not the owner of the

mitigation site, an agreement between the applicant and owner must also be submitted.

That agreement must clearly state that the applicant has permission to construct,

maintain and monitor the mitigation site, and that the landowner is willing to establish

permanent protection of the mitigation site as required in the permit. The property owner

must also sign Block 13 of the JPA.

State-owned land: If the activity is proposed on state-owned (DSL managed) land,

DSL will obtain the landowner signature which only allows the applicant to apply for a

removal-fill permit. A separate proprietary approval from DSL’s Proprietary Coordinator

is usually required for project implementation. If a proprietary approval is required, a

DSL Proprietary Coordinator will contact the applicant.

Block 3: Project Information

Project name: Provide the commonly used name for the proposed project.

Project address: The street address, if available, is required. If there is no street

address, the nearest cross street, highway milepost, or other descriptive location

information is required.

Latitude and longitude: The latitude and longitude (lat/long) of the project site in

decimal degrees is required. Lat/long can be estimated using Google earth (click twice

on the location), Google maps, or Bing maps. For projects with multiple locations,

provide the lat/long for each location. For linear projects, provide the lat/long start and

end points. For dredging, provide the lat/long for each corner of the dredging and in-

water disposal boundaries.

City and county: The nearest city, along with the county is required.

Legal description: Township, range, section(s), and ¼, ¼ section should be entered.

The tax map number and tax lot number should also be included. A tax lot map, with the

project tax lots highlighted, must be attached as a drawing in the application. Tax lot

numbers and maps can be found at the Oregon Map website.

Directions to the site: Directions to the removal-site should be of sufficient detail so

that a person unfamiliar with the area can drive to the site.

Types of waterbodies or wetlands: Check as applicable all waterbody and/or wetland

types located within the defined project area. Include waterbody(ies) name(s) and river

mile, if any. If it is an unnamed tributary to a waterbody, “unnamed tributary of ”

should be entered.

For linear projects, all affected tax lots should be identified. For latitude and longitude, the

start and stop points for the project should be identified.

5-17

field HUC: This is the numerical watershed that the proposed project is located

within. This “Hydrologic Unit Code” (or HUC) should be entered as a 12-digit number.

Use the HUC Map to identify the associated 6

field HUC number for your project site

Block 4: Project Description

Narrative description: Provide a description of the overall proposed project, including:

• All associated work with the project both outside and within waters of this state.

• Total area of impervious surfaces created or modified by the project.

• Each removal or fill activity proposed in waters or wetlands, as well as any

construction or maintenance of in-water or over-water structures.

• The number and dimensions of in-water or over-water structures (i.e., pilings,

floating docks) proposed within waters or wetlands.

• Construction methods: Describe how the removal and/or fill activities will be

accomplished including construction methods, equipment to be used, where

equipment will operate from, access and staging areas, etc. Also include

measures you will use during construction to minimize impacts to the waterway

or wetland. Examples may include isolating work areas, controlling construction

access and using specialized equipment or materials. Attach work area isolation

and/or erosion and pollution control plans, if applicable.

• Provide a description of the fill material and the source(s) of fill materials (if

known).

• Locations for disposal area(s) for dredged material, if applicable. If dredged

material is to be discharged on an upland site, identify the site and the steps to

be taken (if necessary) to prevent runoff from the dredged material back into a

waterbody. If using an upland disposal area that is not a DEQ-regulated landfill,

a Solid Waste Letter of Authorization or a Beneficial Use Determination from

DEQ may be required.

• Provide the anticipated start and end date for the project. If

the project is expected to take more than one year to

complete, a multi-year permit may be issued (up to five

years). For multi-year permits, the applicant must pay the

annual fees for each year it will be valid. The rate is the

based on the current fees schedule. Except for

Maintenance Dredging, GPs are not renewable after five

years. (An entire new application, fees, public notice, etc.

are required.)

Removal and fill volumes and dimensions: Summarize the dimensions, volume and

type/composition of material being placed or removed in each waterbody or wetland.

Describe each impact in a separate row. Add extra rows, if needed or include as an attachment.

Note: To calculate volume in cubic yards multiply length x width x height measured

in feet and divide the total by 27.

Timing: Work within

the jurisdictional area

of waterways is

typically limited to the

ODFW recommended

in-water work period.

5-18

Block 5: Project Purpose and Need

All projects must have a defined purpose(s) based on documented need(s). The

purpose is typically the “what,” which is then followed by the need statements, the

“why.”

The purpose and need statements are critical because they

become the foundation of the alternatives analysis. Good

purpose and need statements help define the reasonable range

of alternatives to be considered and become a key criterion to

determining which alternatives are practicable and which are not.

The following items are required by DSL, as applicable:

• A description of any public need for the proposed removal or fill and any social,

economic, or other public benefits likely to result from the removal or fill.

• A description of whether the applicant is a public body and that public body has

made findings regarding local public need and benefits.

• A description of any anticipated economic costs to the public if the proposed

removal or fill is not accomplished.

• If the project involves fill in the estuary for a non-water dependent use, explain

how the project is for public use and/or satisfies a public need.

• If the project is located within a marine reserve or marine protected area, explain

how the project is needed to study, monitor, evaluate, enforce, or protect the

designated area.

• If the project is for an Ocean Renewable Energy Facility, DSL will only authorize

a removal-fill activity that complies with the criteria described in applicable parts

of the Territorial Sea Plan.

Block 6: Description of Resources in Project Area

Territorial Sea: For activities in the Territorial Sea (mean lower low water elevation

seaward to 3 statutory miles), provide a separate evaluation of the resources and an effects

determination. The Territorial Sea Plan Part 2 Checklist is available for completing these

analyses. An application for a permit related to marine resources or removal-fill in the

territorial sea must include all of the information required by the applicable Part of the

Territorial Sea Plan.

Areas of removal and fill may or may not overlap. In this section of the application all removal

and fill volumes and areas must be included. In other parts of the application clarify how much total

acreage is impacted. At a minimum include the total area of impact in the project description and

mitigation sections of the application.

Further guidance on

developing the purpose

and need statement and

the alternatives analysis, is

provided in preparing the

Alternatives Analysis

Appendix.

5-19

For each wetland, include:

• Whether the wetland is freshwater or tidal, and the

Cowardin and Hydrogeomorphic (HGM) class and

subclass

• Dominant plant species by layer (herb, shrub, tree).

• A functions and values assessment of the wetland to be

impacted, including hydrologic, water quality, fish

habitat, aquatic habitat and ecosystem support functions

(for impacts greater than 0.2 acre, DSL requires use of

ORWAP), should be attached as a separate document

• Identify any Aquatic Resources of Special Concern in or

near the project area (see Appendix F)

• Describe existing uses, including fish and wildlife use

(type, abundance, period of use, significance of site)

For rivers, streams, other waterways, lakes and ponds,

include a description of, as applicable:

• Streamflow regime (e.g., perennial year-round flow, intermittent seasonal flow,

ephemeral event-driven flow). If flow is ephemeral, provide Streamflow Duration

Assessment Method for Oregon (SFAM) data sheet or other information that

supports your determination.

• Identify any Aquatic Resources of Special Concern in or near the project area

(see Appendix F)

• A functions and values assessment of the water to be impacted, including

hydrologic, geomorphic, biological and water quality functions (for wadeable

non-tidal rivers and streams DSL requires use of SFAM) should be attached as

a separate document

• Field indicators used to identify the ordinary high water mark

• Channel and bank conditions

• Type and condition of riparian (streamside) vegetation

• Channel morphology (structure and shape)

• Stream substrate

• Fish and wildlife (type, abundance, period of use, significance of site)

Existing navigation, fishing, and recreational uses: Describe any known use of the

wetlands or waterbodies within the project area for navigation, fishing, or public recreation.

It is important that a summary

of the biological and

physical characteristics of

the wetland or waterway be

included in Block 6 of the

application. Just referencing a

wetland delineation report or

biological assessment does

not provide enough

information for reviewers.

Voluntary habitat restoration

projects may have the

requirement for a functions

and values assessment

waived on a case-by-case

basis at the discretion of the

Department. Pre-application

coordination is recommended.

5-20

Block 7: Project Specific Criteria and Alternatives Analysis

DSL will only approve the proposed project that represents the practicable alternative

that would have the least impact on the waters of this state. The alternatives analysis is

how the applicant and DSL determine that alternative. There are three steps to an

alternatives analysis:

• A list of project-specific criteria to accomplish the stated purpose (from Block 5) is

developed.

• A range of alternative project locations and layouts, including those with lesser

impact, that could meet the project purpose are identified.

• Each alternative is evaluated against the project criteria to derive the practicable

alternative with the least impacts.

If the project involves fill in an estuary for a non-water-dependent use, a description of

alternative non-estuarine sites must be included.

The range of alternatives to achieve the project purpose should include realistic

alternative project locations, layouts, and construction methods. Each alternative

discussed must have an explanation of why it was or was not chosen. See Appendix E

on preparing an alternatives analysis for more guidance.

Block 8: Additional Information

Indicate “yes”, “no” or “do not know” for each question listed in Block 8. The application

form provides internet resources to help answer each question.

Other DSL and/or Corps actions: Provide all information known to you regarding any

previous actions (permits, violations, wetland delineations) associated with the project

site.

Function and value assessments for voluntary habitat restoration projects:

At its discretion and on a case-by-case basis, the Department may waive any permit application

requirements for a voluntary habitat restoration project (141-085-0550 (8)). Pre-application

meetings or discussions are encouraged to determine what requirements may be waived.

The Department may require the information provided in a functions and values assessment to

reach a permit decision for some projects. Example include when:

• Some areas may be converted to upland or open water as a result of the project,

• The project may convert the type or class of the water of this state, and

• The project may degrade existing functions and values.

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Block 9: Impacts, Restoration/Rehabilitation, Compensatory Mitigation

Unavoidable environmental impacts: Describe the unavoidable environmental

impacts that are likely to result from the proposed project. Include permanent and

temporary impacts, and direct and indirect impacts. Provide a written analysis of

potential changes the project may make to hydrologic characteristics of the affected

wetlands or waterbodies and an explanation of measures taken to avoid or minimize

any adverse effects of those changes, such as: impeding, restricting or increasing flows;

relocating or redirection flow and potential flooding or erosion downstream of the

project, changes to water velocity up or downstream, change in frequency of inundation

and saturation of wetlands, etc.

Provide a table summarizing permanent and temporary impacts by HGM and Cowardin

classifications. This should include direct and indirect impacts.

Site restoration: For temporary disturbance of soils and/or vegetation in waterways,

wetlands, or riparian (streamside) areas, discuss how you will restore the site after

construction. This may include the following:

• Grading plans to restore pre-existing elevations

• Planting plans and species list (native species only) to replace vegetation

• Maintenance and monitoring plans to document restoration to wetland condition

and/or vegetation establishment

• Associated erosion control for site stabilization

Compensatory mitigation: Describe your proposed

compensatory mitigation approach or explain why you

believe compensatory mitigation is not required. If proposing

permittee-responsible mitigation for permanent impact to

waters of this state, see OAR 141-085-0705 and 33 CFR

332.4(c) for plan requirements.

Block 10: Adjacent Property Owners for Project and Mitigation Site(s)

Names and addresses for properties that are adjacent to the project site and permittee

responsible mitigation site (if applicable), are required. “Adjacent” means those

properties that share or touch upon a common property line or are across the street or

Note: In situations where

the project affects

wetlands, but does not

convert wetland to upland,

compensatory wetland

mitigation may still be

required to offset the loss

of function.

For linear facility projects on new alignments, the applicant must provide mailing addresses (or

mailing labels if more than five) of all landowners along the entire alignment, regardless of whether

the applicant has permission to use the property or whether there are removal-fill impacts. In

addition, addresses (or labels) must be provided for all landowners whose land is adjacent to

those properties within the alignment. For an existing alignment, addresses (or labels) are only

required for landowners directly affected by removal-fill activities and landowners adjacent thereto.

5-22

stream. If more than 5, attach pre-printed labels. A list of property owners may be

obtained by contacting the county tax assessor’s office.

Block 11: City/County Planning Department Land Use Affidavit

This section is to be completed and signed by the local city or county planning office.

The purpose of the affidavit is to identify whether the proposed project is consistent with

the local comprehensive plan and zoning ordinances and to identify the types of local

approvals that will be required. The project does not need local approvals before the

local planning official completes the affidavit. DSL may delay or deny an application that

requires a zone change or comprehensive plan amendment. DSL may seek clarification

from a local planning official if the information in the affidavit is unclear or unknown.

Block 12: Coastal Zone Certification

The certification statement must be signed by the applicant for all projects located in the

Coastal Zone (generally, west of the coast range summit).

Block 13: Signatures

The applicant and agent must sign the application. If the consultant listed in Block 2 is

not acting as the agent, the consultant does not have to sign the application. If the

project or mitigation site is not owned by the applicant, the landowner must also sign the

application, unless there is an easement allowing the activity, or a written authorization

is provided from the landowner consenting to the project. Applications for GPs or

projects that fit the definition of “linear” do not require landowner signature other than

DSL’s.

By signing the application, the applicant becomes the responsible party for compliance

with the permit and any associated mitigation obligation. Also, the signature verifies the

applicant attests to the accuracy of the information contained in the application. Failure

to provide complete and accurate information in the application may be grounds for

denial, suspension or revocation of the permit.

If the project site contains state-owned lands, DSL staff will forward the application to

the Proprietary Coordinator. The Proprietary Coordinator will review the application to

determine whether an easement or lease is required from DSL and will sign the

application as the landowner. The Proprietary Coordinator signature only gives

permission for the applicant to apply for a removal-fill permit. It does not give permission

to construct the project on state-owned land. A separate proprietary approval (easement

or lease) is usually required.

Block 14: Attachments

Include the documents listed in Block 14, as applicable. The following guidance is

offered for selected attachments.

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Project drawings: Paper size up to 11” x 17” may be used. If more than one sheet is

necessary to illustrate the project, match-lines should be provided and a key to the

match sheets of the entire project included. All drawings must include a scale bar,

legend, and north arrow. All figures must be clearly reproducible by both scanning and

photocopying (i.e. yellow and light gray lines do not reproduce well). All text should be

clear and large enough to be legible. All line types should be clearly identified and

easily distinguishable. Turn off layers that do not apply to DSL’s application review.

The following drawings must be provided:

• Location map: The location map should be of sufficient scale and detail to allow

someone who is unfamiliar with the area to drive to the site from the nearest city,

town or major highway intersection. The location map should show the nearest

main road and intersections. The location map should also show the boundaries

of the entire project (i.e. staging, construction access, mitigation), not just the

impact site. Location maps for off-site mitigation areas must also be included.

Typically, Bing or Google maps serve as the best location maps.

• Tax lot map: Attach a tax lot map(s) with the project site and mitigation site (if

applicable) boundaries clearly delineated. Label the tax lots on the map.

• Site Plan drawings: The site plan drawings must be

clear enough so a person unfamiliar with the project

can understand where the waterway and wetland

resources are and how they will be impacted by the

removal-fill activities. The site plan drawings must

include:

o Tax Lot boundaries

o The entire project (including roads, buildings,

utilities, etc.)

o Existing and proposed contours, as

applicable

o Location of ordinary high water, wetland boundaries or other jurisdictional

boundaries

o Jurisdictional boundaries by resource type (i.e., wetland boundary by

Cowardin and HGM class and location of OHW)

o Stormwater outfalls, if applicable

o Clear identification of the areas proposed for all removal-fill activities and

impacts (temporary and permanent). Cross-hatching should be used to

distinguish various types of impacts. If there is more than one removal-fill

site, identifiers should be assigned (wetland A, B, etc.) and referenced in

the narrative description of the project and mitigation plan.

o Staging areas and equipment or construction access

o Location of the cross sections

o Compensatory mitigation areas

o Scale bar, north arrow and legend

Site plan drawings should not

contain so much detail that it

interferes with the ability to

understand the drawing. To

reduce clutter on engineered

drawings, the applicant should

review the drawing for clarity

and turn off any layers that are

unnecessary.

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o Date. If drawings are updated or resubmitted, the date should also be

updated.

• Cross section drawing(s): Cross section drawings are required to illustrate the

vertical extent of removal and fill activities relative to existing elevations. To be

meaningful, the location of cross sections on the plan view should be in the area

of greatest extent of removal-fill activity. Cross sections must be of a scale

sufficient to evaluate proposed removal-fill activities and must include:

o A vertical and horizontal scale bars

o The existing and proposed ground elevations

o Jurisdictional boundaries (e.g., OHW or wetland boundary)

o The proposed water elevation, if applicable

o Any structures or construction limits

o Clearly identification temporary, permanent, direct and indirect impact areas

within waterbodies or wetlands

o Date. If drawings are updated or resubmitted, the date should also be updated.

Recent aerial photo: At least 1”:200’, or the highest resolution available that provides a

clear view of the entire site with the project boundaries identified. There are numerous

aerial photo services available online from Google, Bing and others.

Site rehabilitation for temporary impacts: If there are temporary impacts, a

rehabilitation plan is required. Temporary impacts are those that are rectified within 24

months of initial impact and are typically associated with utilities and equipment access

roads. The rehabilitation plan should be designed to:

• Re-establish the pre-existing contours of the site

• Re-establish the pre-existing vegetation community

• Provide for rapid site stabilization to prevent erosion

• Hatch the planting area to clearly show what species will be planted in what

areas.

The rehabilitation plan should include a grading plan and a list of plants, as applicable.

A monitoring plan (including monitoring method, criteria and duration) must also be

included to confirm successful re-establishment of the wetland and vegetation.

Mitigation plan and functions and values assessments: If there are permanent

impacts a mitigation plan is required. Functions and values assessments for the

impacted wetland, stream, or other waters and for the proposed mitigation site must be

conducted to determine if the mitigation site meets the eligibility requirements and to

complete the mitigation accounting calculation. The following mitigation documents

must be provided:

Resubmitted applications should contain original drawings to avoid submitting copies of copies,

rendering the drawing illegible.

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• Eligibility and Accounting Worksheet: A completed eligibility and accounting

spreadsheet and the matching quick guide(s) (from the eligibility and accounting

worksheet) is required to document that the proposed mitigation plan meets the

eligibility requirements, to demonstrate what the minimum mitigation area

requirements are, and to convey to the reviewer how the assessments were

compared and determined to provide replacement of lost functions and values.

• Functions and values assessments: A completed functions and values

assessment for the impact and proposed mitigation site is required to determine

mitigation eligibility and to document what functions and values will be lost at the

impact site and replaced at the mitigation site. The parts of the functions and

values assessments that need to be included as attachments are:

o Cover pages

o Score sheets

o ORWAP OF, F or T, and S Forms

o SFAM PA, PAA, and EAA forms

o ORWAP and SFAM Reports

o Assessment maps

 For ORWAP – soils, topo, assessment area, contributing area

 For SFAM – aerial photo site map, topo site map. Both should

document the PA, PAA, and EAA

In addition, the excel file for each assessment should be sent to (emailed) to the

DSL Aquatic Resource Coordinator reviewing the application.

• Mitigation Plan: A mitigation plan describes in detail the proposed mitigation

site; how it will be constructed, monitored, and maintained. Details on the

information required to be included in a mitigation plan can be found in Chapter 9

below.

General Authorization Notification Instructions

Applicants seeking eligibility under one or more of DSL’s GAs

must submit a GA Notification Form to DSL at least 30 days in

advance of starting the removal-fill activity.

Block 1: Responsible Person Contact Information

Provide all requested contact information for the person that will

be responsible for complying with the conditions of the GA.

Block 2: Landowner Information

If the owner of the land where the removal-fill activity will occur is

different than the “responsible party,” then include all landowner contact information

here. GAs do not authorize trespass on the land of others. The responsible party must

In evaluating what type of

authorization is

appropriate for a project,

DSL considers the entire

project. If a project involves

any removal-fill activity that

is not eligible for a GA, the

Joint Permit Application

must be used to apply for an

Individual Permit or General

Permit.

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obtain all necessary access permits or rights-of-way before entering lands owned by

another. Landowner signature on the GA Notification Form is not required.

Block 3: Project Location Information

All requested information regarding the location of the proposed removal-fill activity

must be provided. See the guidance document on determining the latitude/longitude.

Block 4: Project Information

Provide the anticipated start and completion dates (month/year) for the removal-fill

activity. DSL may use this information to schedule a permit compliance site visit.

Block 5: Activities for the Project

Check the box(es) for the GAs for which eligibility is sought. The notification may involve

more than one GA eligible activity for a single project. However, the GA for Minimal

Disturbance in ESH, the GA for Removing and Disposing of Sediment Behind Tide

Gates, and the GA for Recreational Placer Mining in ESH cannot be combined with any

other GA.

For each activity checked, the appropriate supplemental page must also be attached to

the notification.

Resource Gains and Losses Sheet

The resource gains and losses sheet must be completed for the Waterway Habitat

Restoration GA, Wetland Ecosystem Restoration GA, Waterway Bank Stabilization GA

and Temporary Impacts to Non-Tidal Wetlands GA. This information is used by DSL to

help track aquatic resource gains and losses as part of our reporting obligations to the

state legislature.

Supplemental Activity Pages

For each GA activity that applies to the project, a supplement page(s) must be

completed and attached to the notification package. Each supplemental page lists

specific fee and information requirements that allow DSL to confirm eligibility.

Attachments

For each GA activity, the required attachments are indicated on the supplement pages.

See guidance for project drawings above.

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Notice for Certain Voluntary Habitat Restoration Activities Page

This page is completed only if the project will additionally include any of the following

three permit-exempt habitat restoration activities:

• Ditch and drain tile removal

• Placement of large wood, boulders, and spawning gravels

• Other activities customarily associated with habitat restoration in Essential

Salmonid Habitat waters

In this case, submittal of the GA notification form will also serve as the notification

requirement associated with those exempt activities.

If you are only conducting exempt activities that require a notice, please use the

Notification for Voluntary Habitat Exemptions form found here.

Block 6: Signature Page

The responsible party indicated in Block 1 must sign and

date the notification form. Landowners, if different than the

responsible party, are not required to sign the notification

form. Before signing, the responsible party must review

the pre-conditions listed in Block 6; by signing the form,

the responsible party is acknowledging their

understanding of them.

For projects on DSL-owned submerged or submersible lands, DSL staff will forward the

notification package to the DSL Proprietary Manager to obtain the appropriate

signature.

Submitting the Notification Package

Completed notifications may be submitted electronically or in paper form. If in paper

form, they must be submitted to the DSL office serving the area where the project is

proposed. For projects located in counties east of the Cascades, applications should be

submitted to the office in Bend. For projects located in counties west of the Cascades,

applications should be submitted to the Salem office. Addresses are listed on the

application form.

Emergency Permit

Please see the section on Emergency Permits under Chapter 7. Emergency forms can

be found on DSLs website.

The Placer Mining GA application

information and the online

form.

There are also links on the form to

important information about areas of

closure and other permitting that

may be required

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Permit Waivers

Applications for permit waivers (for remedial actions conducted on a site selected or

approved by DEQ)

are made on the JPA form. However, the items below are generally

not required for a complete application. Check with the Resource Coordinator for your

area.

• Signed Land Use Compatibility Statement

• Alternatives analysis

• Signature of landowner if different than applicant (except for permitee

responsible CM)

• Identification of adjacent land owners

Application Fees

For DSL to determine that an application is complete, it must include the correct

application fee. An exception is application fees for emergency permits, which are due

within 45 days of receiving the emergency permit.

No-fee project types: The following project types do not require an application fee

regardless of the type of authorization:

• Erosion-flood repair or streambank stabilization

• Voluntary restoration projects

• Any GA involving less than 50 c.y. of removal and fill

• Applications resulting in a “No State Permit Required” determination

GA fees: GAs involving more than 50 c.y. of removal and fill require a flat fee of $250.

There is no fee for the Waterway Habitat Restoration GA, Bank Stabilization GA, and

Wetland Ecosystem Restoration GA)

All other application fees: The fee is calculated according to applicant type and

volume of removal and/or fill according to the current fee schedule.

Making payment: Application fees may be paid by check or with credit card. Checks

must be made payable to the Oregon Department of State Lands and should

accompany the application.

Payment by credit card may be accepted after an application has been submitted and

assigned a file number by DSL. The applicant will need the application number and

the correct fee amount. Credit card payments must be made online on the DSL

website.

All application fees received by DSL are deposited in the Common School fund for

use by DSL in administering the Removal-Fill Law.

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Chapter 6: Processing the Removal-Fill Permit Application

Chapter Overview

Processing General Authorizations (GA)

Projects that qualify for a General Authorization, will be reviewed within 30 days of

receipt to confirm that an application is complete and eligible.

Processing Individual Permit (IP) and General Permit (GP) Applications

• Step 1: Application Completeness Review: (30 days for IPs/15 days for GPs) The

application is reviewed for completeness and applicable permit type. A

completeness review letter is sent to the applicant documenting the review. If the

application is deemed incomplete, a revised application in entirety is required.

• Step 2: Public Review Period: (30 days for IPs/15 days for GPs) If the application

is deemed complete, the public review period is initiated. A notice is sent to other

agencies, adjacent property owners, and other interested parties inviting

comment on the application.

• Step 3: Final Review: (60 days for IPs/ a total of 40 days from the receipt of a

complete application for GPs) Consideration is given to comments received

which are relevant to the decision-making process. The applicant is invited to

address relevant comments and any unresolved technical issues by providing

additional information or revising the project.

• Step 4: Permit Decision: The entire record is evaluated against the criteria for

permit issuance and a permit is approved or denied. If more time is needed to

address issues, the applicant may request an extension of the decision deadline.

Term and Expiration

Permits may be issued from one to five years. GAs are issued for three years.

Renewal and Transfer

Permits may be renewed upon request. Before an IP expires, DSL will notify the

permittee of the opportunity to renew the permit. Except for Maintenance Dredging, GPs

cannot be renewed beyond 5 years. GAs are not renewable.

Modifying the Permit

Modification of a permit may be requested by the permittee or initiated by DSL.

Special Permitting Situations

By law, state correctional facilities, solid waste landfills, and certain energy generation

facilities follow a removal-fill permit process that is different than the standard process.

Permit-Related Appeals

A permit or authorization decision may be appealed by the applicant or third parties that

are “aggrieved” or “adversely affected” by the authorization decision. Applicants may

appeal an incompleteness determination. Appeals are adjudicated through the

contested case hearing process.

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Intake and Initial Handling

When an application or notification is received by DSL, the Department does several

things to prepare the document for review and processing.

Date stamping: The application or notification is date stamped to record the start of the

processing timelines.

Data entry: Within approximately three days of receipt, the information is entered into

the DSL database. Before data entry, basic information about the applicant and the

location are verified and corrected if necessary. The agency’s database is queried to

determine if:

• The project is connected to an expired permit that was previously authorized.

• There are any unresolved compliance issues at the site.

• A wetlands determination or delineation for the site has been submitted and if

there is delineation concurrence.

• There is a compensatory mitigation site on the project site.

• The project is located on state-owned land administered by DSL or is in

designated Essential Salmon Habitat (ESH) or a State Scenic Waterway.

Landowner signature on state-owned land: For every application and notification, an

electronic notice is sent to DSL’s Proprietary Coordinator to determine if the project is

located on DSL land. If yes, the Proprietary Coordinator for the area will sign the

application as the property owner. A signature from the Proprietary Coordinator only

allows the applicant the permission to apply for a removal-fill permit. The Proprietary

Coordinator will follow up with the applicant if a lease or easement is required for the

project.

Scanning and posting on the DSL Website: Applications and notifications are

scanned (if paper form) and posted to the DSL website for public viewing. Prior to

scanning, non-essential information such as regulation citations, copies of wetland

delineation reports and excerpts from local government zoning ordinances are removed

from the package. While such information is not scanned and posted on the website, it

remains part of the official record and available for review upon request.

Fee Handling: During the completeness review, staff will determine the fee amount

and notify the applicant with the completeness determination.

Chapter 6: Processing the Removal-Fill Permit Application

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If DSL does not review the GA

notification within 30 days of

receipt, the notification will

automatically change to

“eligible” status and the

applicant may commence the

removal-fill activity.

Payment by credit card: Payment by credit card may be accepted after an application

has been submitted and assigned a file number by DSL. The applicant will need the

application number and the correct fee amount. Credit card payments may be made

online at the DSL website.

Overpayments, underpayments, and refunds: Overpayments or payments for

permits that do not require a fee will be refunded to the applicant within 60 days after

permit issuance. Underpayments will be identified in the application completeness

review letter. Refunds are not provided when applications are withdrawn, are denied, or

for permits that are not implemented.

Processing General Authorization Notifications(GA)

To confirm project eligibility under one of the GAs, the GA Notification Form must be

submitted to DSL.

The GA Completeness and Eligibility Review

The following is for all GAs except placer mining. Within 30 calendar days of receipt, the

Aquatic Resource Coordinator will review the GA notification package for completeness

and eligibility using a General Authorization Notification Checklist. The standards that

are applied are listed in the administrative rules for the GA (OAR 141-089).

If a GA notification is deemed complete and eligible, DSL will return the notification with

the:

• “Eligible” box checked

• Timing for work within the jurisdictional area

indicated

• Expiration date

• Signature of the Aquatic Resource Coordinator

• General and activity specific conditions

• Short Term Access Agreement, if one is required

for work on DSL-owned submerged or submersible lands.

No State Permit Required Determinations

To receive official confirmation that a permit is not required for a specific project, an application

must be submitted to DSL for review. The Department does not typically require a “complete”

application for this determination; information must, however, be sufficient for DSL to determine

removal-fill jurisdiction or exemption status. Please contact the Aquatic Resource Coordinator i

your county to determine what information is required. If it is determined that a removal-fill permit is

not required for the proposed activity, the Department will issue a "No State Permit Required" letter

within 30 days of receipt of the application. There is no application fee for this service. Application

fees will be refunded to the applicant.

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If the notification is found to be incomplete, an incompleteness letter will be sent to the

responsible party, identifying the missing information. A new 30-day review period is

initiated upon receipt of a revised notification package. DSL may elect to close the file if

the revised package is not received within 120 days.

If a notification is determined to be ineligible, a letter describing the reason for

ineligibility will be sent to the applicant. The applicant will then have the option to either

modify the project to meet the GA requirements or have the application processed as a

GP or IP. In either case, a revised notification or application package will need to be

submitted within 120 days to continue processing.

DSL reserves the right to require an IP or GP for a project that might otherwise qualify

for a GA, if DSL determines that the activity may cause more than minimal adverse

effects or might result in long-term harm to waters of this state.

Term of GAs, Renewal and Revision

All GAs, except for the Placer Mining GA, are issued for three years and cannot be

renewed. Placer Mining GAs are issued for up to one calendar year and expire on

December 31. To renew Placer Mining GAs, an annual report must be submitted to

DSL.

Revision to an approved GA may be requested by submitting a revised notification. If

the revision is determined complete and eligible, the new determination will be sent to

the responsible person for posting at the worksite

Processing Individual Permit and General Permit Applications

Step 1: Reviewing IP and GP Applications for Completeness

Review Standards

DSL conducts a completeness review within 30 days of receipt of an IP application and

within 15 days for a GP.

A complete application is one that contains sufficient information for DSL and the public

to make an informed evaluation of the project's effects, the availability of alternatives,

and whether the mitigation is sufficient to offset the anticipated adverse effects. The

Aquatic Resource Coordinator will use the Joint Permit Application (JPA) Completeness

and Mitigation Plan Checklist (if applicable) for conducting the completeness review of

the JPA.

In conducting the completeness review, DSL addresses four questions:

• Does the application contain all the required information?

• Is the information accurate?

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• Is the level of detail sufficient?

• Is the information in the application consistent with administrative rules?

Does the Application Contain All Required Information? The information required

for permit applications is listed in the Joint Permit Application (JPA) Completeness and

Mitigation Plan Checklist. Not all items on the checklists apply to all projects.

Is the Information Accurate? The Aquatic Resource Coordinator will review the

application to evaluate the accuracy of the information in the application. For example, if

the fill volumes are not reported consistently throughout the application, the Aquatic

Resource Coordinator will ask the applicant for clarification.

If the inaccurate information is something that requires a minor correction, the Aquatic

Resource Coordinator may make the correction on the application by hand and initial

the change. An example is correcting an erroneous latitude and longitude for the project

site location.

The Aquatic Resource Coordinator will check the Secretary of State’s Business Registry

to confirm the business entity name matches exactly and the business’s status.

Is the Level of Detail Sufficient? The application must contain sufficient detail to

allow DSL to make the necessary determinations and decisions (see below) regarding

the permit. The level of detail required is dependent on factors including, but not limited

to the:

• Area of resource impact

• Level of potential interference to navigation, fishing or public recreation

• Functions and values of the affected resource

• Uniqueness of the affected resource

• Anticipated level of public interest

The issue of sufficient detail is often discussed in the context of the need to

demonstrate avoidance and minimization of impacts to waters of this state. For

example, an application for a project proposing to impact two acres of forested wetlands

would need a more robust alternatives analysis than an application proposing a one-

tenth acre of wetland impact.

There is no formula to determine the required level of detail for any given project

because there are many factors involved. The applicant’s goal is to provide enough

detail and supporting information to allow DSL to fully evaluate the application. DSL has

the discretion to request additional detail if deemed appropriate.

Is the Information in the Application Consistent with Administrative Rules?

Another purpose of the application review process is to alert the applicant if any part of

the application is inconsistent with administrative rules. Inconsistencies may lead to a

determination of incompleteness, and some may be resolved later in the permit

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process, depending on how the correction would change the ability of the public to

review the project.

For example, a wetland mitigation plan may be determined

“complete” because the plan contains performance standards as

required by administrative rule. However, DSL may believe those

standards are insufficient to accurately measure the success of

the mitigation. In this case, the mitigation plan may still be

deemed complete, but the technical issue will be flagged for

further evaluation and discussion with the applicant as part of the

final review period.

In contrast, if the proposed mitigation involves wetland enhancement that does not meet

the criteria specified in the administrative rules, the application would be deemed

incomplete because the mitigation would need to be substantially revised and therefore

affect the public’s ability to effectively review the project.

The Aquatic Resource Coordinator reviews the application to address the questions

above and DSL determines if the application is complete. An application must be

determined "complete" by DSL to proceed to the public review period. The

completeness review step confirms that sufficient information is present in the

application, in contrast to the Technical Review Period, which is the point in the process

where DSL staff evaluates all the information, including public comments, to make the

final decision.

Not all application deficiencies lead to an incomplete determination. Sometimes

deficiencies are minor enough that they do not affect the public’s understanding of the

scope and effect of the project. Thus, it can be easily corrected or addressed later

during the final review phase of the process.

The Application Completeness Review Letter

The results of the completeness review are communicated to the applicant via email.

If the application is deemed complete, including the fee, the applicant will be advised

of the following:

• The application is sufficient to proceed to the public review period

For GPs: DSL

determines if the project

is eligible under OAR

141-093 for the specific

type of GP. GPs have

specific eligibility

requirements set forth in

those rules.

Administrative Rule Changes and Timing of Application Submittal: The date the complete

application is received by the Department is important because the administrative rules that are

in effect on that date are the ones that apply. For instance, if an application is received right

before a change in the administrative rules and it is determined to be complete, the previous

administrative rules are used as the standard for processing the permit application (even if the

completeness review does not occur until after the rule change). If that application is deemed

incomplete, and the administrative rules change before the application is resubmitted, the new

rules will apply.

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• Any issues that do not make the application incomplete, but should be addressed

prior to the permit decision

• Any other routine items that need to be addressed before the permit decision, such

as mitigation bank credit purchase

If the application is deemed incomplete, the email will include a copy of the checklist

with the missing or deficient information identified. At this point, the application is

changed to “awaiting application revision” status on the DSL website.

An entire new application package must be re-

submitted, referencing the DSL application number.

Addenda or individual pages should not be submitted

unless directed by the Aquatic Resource Coordinator.

Re-submittal of an application will initiate a new

completeness review period. If a revised application

is not submitted within 120 calendar days from the

date of the completeness review letter, DSL may close the file and retain the application

fee. The applicant will then need to reapply for a permit and submit a new application

fee.

Step 2: The Public Review Period

Once the application has been deemed complete, the application is made available for

comment on the DSL website under the section titled “Applications Available for

Comment”.

The public review period allows DSL to solicit the input of interested parties on the

proposed removal-fill activity. Input received by DSL is used to make a permit decision

and develop permit conditions necessary to protect Oregon's water resources.

Public Review Period Timelines

The public review period for IPs is 30 days and 15 days for GPs.

DSL has the discretion to shorten the public review period, upon

manager approval, for a given application but will do so only in

rare circumstances. Situations that may warrant a shortened

public review include, but are not limited to:

• A project with resource benefits when expediting the

permit is necessary to meet grant deadlines or in-water

work periods.

• DSL has made a mistake in the application review step which caused

unnecessary project delays.

Invitation to Comment

DSL will notify adjacent property owners (as identified in the permit application),

affected local government planning departments, state and federal natural resource

A date to remember:

The “end of the

comment period” is

important to remember

so applicants are

prepared to respond to

comments in a timely

manner.

For GPs: If an applicant requests that

the application be processed as a GP

and DSL determines it is ineligible, the

applicant will be informed of this decision

in the review letter. The application will

be then processed as an IP.

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agencies, tribal governments, watershed councils, and other public interest groups in

the geographic area affected by the permit of the opportunity to review and comment on

permit applications. Parties may request to be added to the public review list by

contacting DSL.

Notification is sent by U.S. mail or e-mail and states that the application is available for

review and comment on DSL's website.

For those without internet access, a paper copy of the application may be requested by

contacting the assigned Aquatic Resource Coordinator. DSL may charge a copying fee

for this service.

The comment period deadline is stated on the website and in the notification. To assure

comments are considered, they must be received at the DSL office no later than 5:00

p.m. on the day of the deadline. Deadlines falling on a non-business day are not

extended to the next business day.

Commenting on Applications

Comments must be submitted in writing to be considered in the permit decision. There

are three ways in which comments may be submitted to DSL.

• Online: Reviewers are encouraged to use the online comment submission form.

From there, internet users may also view comments submitted online by others.

• By mail: Reviewers may submit comments by mail to the Aquatic Resource

Coordinator assigned to the application. The application number must be

referenced in the correspondence.

• By e-mail: Reviewers may submit comments by e-mail to the Aquatic Resource

Coordinator assigned to the application. The application number must be

referenced in the correspondence.

DSL will only consider comments relevant to the Removal-

Fill Law. Because DSL's authority is limited to effects to

waters of this state, it is important comments focus on

aspects of the project that relate to the conservation,

protection and best uses of the water resource.

Examples of topics DSL may consider in the permit decision

include:

• Effects to the flow or reach of waters on adjacent

properties

• Effects to water quality

• Effects to aquatic habitat

• Availability of other alternatives with lesser adverse

impacts to waters of this state

• Adequacy of the proposed mitigation to offset adverse effects to waters of this

state

Comments from state

agencies: DSL relies on

comments from other state

agencies as experts. For

example, DSL will rely on

comments from ODFW

regarding project effects to

fish habitat, DEQ regarding

effects to water quality, and

the Marine Board regarding

effects to recreational

boating.

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Examples of topics that DSL cannot consider are:

• Traffic, noise, dust, and air pollution concerns

• Aesthetic concerns

• Local land use decisions

Step 3: The Technical Review Period

The timeline for the final technical review is 60 calendar days after the comment period

closes for IPs and 10 calendar days after the comment period closes for GPs. The

technical review is for:

• DSL to consider comments received during the public review period

• The applicant to address public comments

• The applicant to resolve any remaining technical issues, including submittal of

bonds or confirmation of mitigation bank credit purchase

DSL Review and Handling of Comments

The Aquatic Resource Coordinator will review all comments and forward them to the

applicant, identifying those relevant to the Removal-Fill Law. Any remaining technical

issues previously identified in the completeness review letter will be listed if they have

not yet been addressed.

Addressing Public Comments by the Applicant

Response to comments must be in writing and submitted to DSL and the commenting

party. The response can be in the form of additional information or project revisions, as

appropriate. For IPs the response to comments should be submitted within 25 days of

receiving the comments; for GPs, within several days or the applicant must coordinate

with the Aquatic Resource Coordinator to extend the decision deadline. This will allow

the Aquatic Resource Coordinator enough time to review the materials, resolve issues

and draft the permit decision.

If the response to comments has not been received by the stated deadline, the Aquatic

Resource Coordinator may alert the applicant. However, DSL will not be responsible for

reminding applicants and consultants of their pending deadlines. In the absence of a

written extension request, DSL will make the permit decision by the established

deadline.

Comments fall into two categories: comments that are informational and do not need a

response from the applicant; and those that require a response from the applicant, and

potentially others. The Aquatic Resource Coordinator will identify which comments

should receive a response.

If an applicant chooses not to respond to comments, DSL will evaluate the record to

make a permit decision. If the applicant does not intend to respond to the comments, it

is helpful to advise the Aquatic Resource Coordinator, so a permit decision is not

delayed.

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Resolving Remaining Technical Issues

An application may have technical issues to be resolved before the final decision by

DSL. Such issues typically include:

• Technical issues identified in the application completeness letter

• A fish passage compliance determination from ODFW

• Last-minute requirements for compensatory mitigation, such as the financial

security or mitigation bank credit purchase certificate

During the final review, DSL may elect to solicit additional input from specific agencies

or conduct interagency meetings to resolve issues, as appropriate.

Because the application is attached to the permit, any changes to the application made

after the public review period must be incorporated into a final updated application

before permit issuance.

Step 4: The Permit Decision

Absent a deadline extension request from the applicant, DSL must make a permit

decision within 60 calendar days from the end of the public review period for IPs, and

within 10 calendar days from the end of the public review period for GPs.

Extension of the Permit Decision Deadline

If more time is needed to respond to comments or satisfy other requirements, the

applicant may request, and DSL may agree to, an extension to:

• Respond to comments received during the public

review period

• Arrange the financial security for mitigation

• Make project modifications to address public

comments

• Resolve land use compatibility issues

• Address compensatory mitigation concerns

While there is no limit on the length of time or the number of extensions that may be

requested by an applicant, both the applicant and DSL must agree to the extension.

It is the applicant’s

responsibility to provide

information to support the

application. DSL has the authority

to request any information that

will enable the Department to

make a permit decision.

Recirculating an application for public review: If an application is significantly modified after

the public review process, DSL may elect to conduct an additional public review. Generally,

modifications in favor of conserving and protecting water resources or that result in a less than

10 percent increase in the wetlands/waterway impact will not require an additional public review

period.

Public hearings and meetings: DSL has the discretion to hold public hearings and public

informational meetings, if needed, to obtain input on a proposed activity or facilitate awareness

of a proposed project. Public hearings are rare and are generally held only if information cannot

be obtained by other methods, and there is substantial public interest.

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In general, DSL will allow extensions for one year from the date of complete application.

Beyond one year, DSL will evaluate evidence of need for the project and whether

changes in the administrative rules or program requirements would necessitate a new

application.

Generally, requests should extend for at least one month

beyond the time needed to provide the required items to

DSL. This will give DSL enough time to consider

additional information submitted, ask follow-up

questions, and prepare the permit decision. If information

to support the application is submitted less than one

month from the permit decision deadline, the Aquatic

Resource Coordinator may ask the applicant to request

an extension.

Considerations and Determinations for the Permit Decision

DSL is required by statute to make two affirmative determinations to approve a

removal-fill permit:

• The project is consistent with the protection, conservation, and best uses of the

waters of this state.

• The project does not unreasonably interfere with preservation of waters for

navigation, fishing, or public recreation. If interference is identified, then DSL

must determine whether that interference is reasonable or unreasonable using

the considerations described below, and most particularly, whether the identified

public need or other public benefits of the project outweigh that interference.

DSL is required to consider nine factors in making those two determinations:

• The public need for the proposed fill or removal and the social, economic

or other public benefits likely to result from the proposed removal or fill:

DSL will consider whether a public need has been demonstrated in the

application and what benefits the public may derive from the proposed removal-

fill activity. When the applicant is a public body (including federal, state or local

government agency, port, or other entity defined in ORS 174.109) DSL will

generally accept the public body's rationale as to local public need and benefit

without further consideration.

• The economic cost to the public if the proposed fill or removal is not

accomplished: DSL will consider the scope and nature of any economic costs to

the public if the removal-fill activity is not allowed.

• The availability of alternatives to the project for which the fill or removal is

proposed: DSL will consider what alternative designs and construction methods

were evaluated to avoid and minimize impact to waters of this state. DSL must

be able to conclude that the proposed project represents the practicable

alternative with the least impact to waters of this state.

For ocean renewable energy

facilities, the permit decision

deadlines may be extended

unilaterally by DSL if it is

determined necessary to

coordinate the issuance of a

proprietary authorization decision

and a removal-fill permit decision.

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• The availability of alternative sites for the proposed fill or removal: DSL will

consider whether there were alternative sites reasonably available to the

applicant for the proposed project that would have lesser impacts to waters of

this state.

• Whether the proposed fill or removal conforms to sound policies of

conservation and would not interfere with public health and safety: DSL will

consider how the proposed action incorporates appropriate protection of and

conservation measures for waters of this state. Sound policies of conservation

are considered at the project scale and within the landscape. For example, a

mitigation site should be in an area that connects wildlife corridors, because that

is a known conservation policy. DSL will also consider the potential positive and

negative effects of the removal-fill on public health and safety. For example,

positive effects might include removal-fill to protect a sewer line. Negative effects

might include increased flood risk to nearby properties.

• Whether the proposed fill or removal conforms with existing public uses of

waters and with uses designated for adjacent land in an acknowledged

comprehensive plan and land-use regulations: DSL will consider the intended

purpose of the removal-fill activity and its potential effect on existing uses of the

waters proposed for impact, as well as effects of the removal-fill activity on

designated uses of adjacent lands (e.g., whether the action significantly impairs,

reduces or damages existing and designated land uses).

• Whether the proposed fill or removal is compatible with the acknowledged

comprehensive plan and land use regulations for the area where the

proposed fill or removal is to take place or can be conditioned on a future

local approval to meet this criterion: DSL will consider the local planning

department's response to the land use compatibility statement (Block 11 of the

JPA) and any additional information regarding land use compatibility gathered

through the application process. In the event the project requires a conditional

use permit or other local development permit, DSL may issue the removal-fill

permit with a condition requiring the specified local approval be issued before

starting. If a project is identified as not being consistent with the local

comprehensive plan, DSL will not authorize the project until a plan amendment or

zone change is secured.

• Whether the proposed fill or removal is for streambank protection: ORS

196.805(2) identifies streambank protection as a beneficial use of waters.

• Whether the applicant has provided all practical mitigation to reduce the

adverse effects of the proposed fill or removal. For compensatory mitigation,

DSL will consider the extent to which the proposed mitigation maximizes the

principal objectives for CM (see Chapter 8: Compensatory Mitigation Planning for

Aquatic Resources).

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Additional Considerations for Estuarine Impacts

If the project involves fill or removal activity in waters subject to the tide for a "non-water

dependent use,” the following additional criteria must be satisfied:

• The removal-fill activity must be for a public use (that is, a publicly owned project

or privately owned project available for use by public)

• The removal-fill activity satisfies a public need that outweighs any harm to

navigation, fishing, and recreation

The term "non-water-dependent use" is defined as a use that does not require location

on or near a waterway to fulfill its basic purpose. For example, fill in waters subject to

the tide to develop a home site would be considered a non-water dependent use,

whereas most coastal port operations, marinas, and docks would be water-dependent

uses.

Documenting the Permit Decision

Individual and General Permit decisions (approval or denial) are documented in the

form of a proposed order of the agency and contain up to five parts as described below.

The proposed order automatically becomes a final order after 20 days if the permit

decision is not contested.

Part One is the proposed order that describes:

• whether the permit is approved or denied

• the basic facts of the application process

• the statutory determinations and considerations leading to the permit decision

and,

• the applicant’s contested case hearing and other legal rights

Part Two (if permit is approved) is the permit “face page” which will identify the:

• Permit number and type (removal, fill or both)

• Wetlands or waterway and the county in which removal-fill activity is authorized

• Expiration date of the permit

• Name of the permittee (the entity responsible for adherence to the permit

conditions)

• Permit notifications or “disclosures” that relate to liability, the requirement to

obtain other permits and other issues

• DSL authorizing signature

Part Three (if permit is approved) is the “Attachment A” which lists the special

conditions for the permit. The special conditions are usually broken down into four

categories:

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• Base conditions identify the routine conditions for

all projects, such as responsible party, description

of the authorized removal-fill activity and

authorized work period.

• Pre-construction conditions typically include a

requirement for local government approval, a

stormwater permit from DEQ, flagging of avoided

resource areas, and other items required before

construction starts.

• Construction conditions vary widely but will

always include requirements for toxic and waste material handling, cultural

resource protection, erosion control methods and other conditions that relate to

construction operations.

• Monitoring and/or Mitigation conditions include requirements for site

construction, monitoring and reporting, performance standards, financial security

and mitigation credit purchase, if applicable.

The Aquatic Resource Coordinator will prepare a draft of the special conditions and may

offer it to the applicant for review. The applicant may request an extension in the permit

decision deadline if necessary to allow adequate time to review the draft conditions.

Part Four (if the permit is approved) is the “Attachment B” which consists of site

location maps and project site plan.

Part Five is a copy of the final, updated application including any changes made during

the application process.

Issuing the Decision

Once the relevant parts of the proposed order are assembled, the Aquatic Resource

Coordinator will:

• Make sure all the documents are in the file

• Make sure the application has been updated to reflect any changes made during

processing

• Complete the Resource Gains and Losses Form

• Complete the Intent to Issue Form

• Complete any regional specific forms

For IPs the decision documents are forwarded to the regional manager for final review

and signature. For GPs the Aquatic Resource Coordinator may sign authorizations.

Once signed, the decision documents are uploaded to the DSL website and a link to

the decision documents is sent to the permittee via e-mail. Notice of the decision

documents is also sent to the local government. For projects located in the Coastal

DSL has the discretion to

include any condition that is

related to protection of water

resources, even if the condition

involves a non-jurisdictional

area. For example, even though

vegetation removal is not

regulated, DSL can require that

riparian vegetation be avoided or

replaced to protect the waterway.

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Zone, a notice is provided to the Department of Land Conservation and Development

as part of their Coastal Zone Management Act consistency determination.

Term and Expiration of the Permit

IPs and GPs are issued for a period of one to five years, based on construction

timelines indicated in the application, or requested by the applicant. Except for

Maintenance Dredging, GPs are not renewable after five years. An entire new

application may be required after the five-year period to assess any changes in site

conditions or the project proposal. DSL encourages issuance of multi-year permits if it

will require more than one year to complete the removal-fill activity. Obtaining a multi-

year permit:

• Provides certainty for the permittee

• Eliminates possible failure to renew the permit

• Reduces the administrative work of permit renewal

For commercial gravel operations, however, DSL can only issue a multi-year permit

when it determines both of the following:

• There is a sufficient aggregate resource or annual recharge (for in-stream

operations) to allow the proposed volumes to be removed

• The permittee has, for at least one-year preceding a pending renewal, conducted

removal in accordance with the permit conditions

For multi-year permits DSL will assess a one-time fee at the rate in effect at the time of

the application. The one-time fee will include the application fee and any applicable

annual fees for the term of the permit.

A permit must remain in effect until the removal-fill activity is complete. If the permittee

anticipates removal-fill work will be necessary beyond the expiration date of the IP, a

permit renewal must be secured.

Permit Renewal and Transfer

This section describes the process for renewing a permit when the removal-fill activity

will not be completed by the expiration date and the process for transferring a permit to

another party.

There is no need to keep a permit active if only mitigation monitoring is being

conducted. The permit is specifically to authorize the removal-fill activity and once that is

complete, the permit can be expired. The mitigation conditions will remain in effect until

the mitigation site is released by DSL, even after permit expiration.

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Permit Renewal

The Renewal Notice

Generally 90 days before the expiration of an IP or GP, a renewal notice and renewal

fee invoice will be sent to the permittee. Permit waivers and facility siting permits (see

Special Situations, below) do not expire; therefore they do not need to be renewed. The

notice must indicate the status of the project and returned:

• The project is completed. Do not renew my permit. If all authorized removal-

fill activity is complete, this box should be checked. DSL will expire the permit.

The permittee will still have an obligation to complete any required mitigation and

submit annual monitoring reports if stipulated in the permit.

• I/we have decided not to do this project. Do not renew my permit. This box

should be checked if the authorized removal-fill activity was never started and the

applicant wishes to expire the permit.

• The project has not been started. Please renew my permit. This box should

be checked if the authorized removal-fill activity has not started but is still

expected to occur. Upon payment of the renewal fee, DSL will process the

renewal request. If the application is 5 years old, DSL may require a complete

updated application and may request the applicant to reassess the “need” for the

project.

• The project has been started, but not completed. Please renew my permit.

Check this box if the authorized removal-fill activity has started but is not

completed. Upon payment of the renewal fee, DSL will process the renewal

request. In this case, the response must include a letter describing the status of

both the authorized removal-fill activity and required mitigation. For IPs, if the

application is 5 years old, DSL may require a complete updated application that

clearly reflects what work has been completed and what work remains. GPs

cannot be renewed after 5 years.

• The scope of the project has changed. Please renew my permit. This box

should be checked if there are any changes to the authorized removal-fill activity.

The response must include a letter describing changes to the removal-fill activity.

DSL will evaluate the changes to determine if an updated application and permit

modification is required. If there are substantial changes, DSL may send the

application out for public comment.

The renewal response must be signed by the permittee and sent with the renewal fee to

DSL as indicated on the notice. Fees can be paid online. The renewal fee is calculated

as the current base fee for the permitted activities.

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If the permittee fails to respond to the renewal notice 45 days before the permit

expiration date, DSL may presume the project is complete and expire the permit. Once

a permit is expired, no further removal-fill activity is authorized. Expired permits cannot

be re-activated.

Processing the Renewal Request

Upon receipt of the renewal request, the Aquatic Resource Coordinator will review the

permit according to the administrative rules and standards in effect at the time of the

renewal request. If there has been a change in the administrative rules or standards

since the last renewal or original authorization, the Aquatic Resource Coordinator may:

• Request additional information from the permittee to confirm the project's

compliance with current rules

• Conduct a public review period

• Modify the permit conditions to conform to the new rules or standards

For permits being renewed within the initial 5-year period, re-evaluation of the wetland is

generally not necessary. However, if DSL becomes aware the boundaries have

changed and the project has not begun after 5 years, DSL staff may investigate to

determine if the permit requires modification. DSL may also consider whether the permit

renewal is appropriate if the project has not begun after 5 years.

After reviewing the renewal request, along with any updated information or public

comments, DSL will either issue a renewed permit or deny the renewal request. If

denied, the permittee will be informed in writing of the reasons for the denial. Permittees

may request a contested case hearing to appeal a denial.

Permit Transfer

Authorizations are issued to specific persons for a

specific project and are not automatically transferred

through property or other business transactions.

The party named on the permit is responsible for

compliance with all conditions of the permit unless

the permit is officially transferred to another party.

Third party or co-applicant

arrangements are not recognized

by DSL. Only one entity may be

listed as the permittee and they are

the sole responsible party for

compliance with the permit.

If the expiration date on an IP is more than five years from the original permit issuance

date, DSL may request a complete updated application that clearly describes what work

has been completed and what work remains. If construction has not begun, DSL in certain

circumstances may require an updated wetland delineation. The updated application or

wetland delineation must be completed according to the standards in effect at the time of

the submittal, and the application must be on a current application form. GPs cannot be

renewed after 5 years.

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Permit transfer requests are made by submitting either the transfer form for individuals

or the permit transfer form for corporations. The transfer form must be signed by the

permittee (the transferrer) and the receiving party (the transferee). The permit transfer

form must be accompanied by a new financial security instrument, issued to the

transferee, if one was required in the permit. If the transferee is a business, the

business must be registered with the Oregon Secretary of State Corporation Division

and an Incumbency Certificate is also required.

Once received, the transfer form is signed by the DSL Manager. There is no fee for

permit transfer.

If the permit has not expired, a modified permit is issued to the transferee. If the permit

is expired, but there are remaining mitigation obligations, DSL will issue a letter

confirming that the mitigation obligation has been transferred to the new party.

Important items to consider related to permit transfer:

• The transferee must be willing to accept, and be legally capable of fulfilling, all

conditions of the authorization, including any mitigation obligation.

• The transferee must be the landowner or person authorized by the landowner to

conduct the removal-fill activity and any required mitigation.

• Partial transfer of a permit is not allowed. The project-related conditions cannot

be transferred to one party and the mitigation-related conditions to a second

party.

Modifying a Permit

Permit modification may be requested by the permittee or initiated by DSL.

Permittee-Initiated Modification

Circumstances may arise after the permit is issued that necessitate a modification of the

permit. Examples include, but are not limited to:

• Changes in the project design

• Changes in impact volume or area

• Implementation of a particular permit condition is found to be unfeasible

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Permit modifications must be requested in writing. If the

modification is significant, DSL may:

• Require a revised application or additional

information

• Circulate the revised application for public review

Examples of "significant" modifications are:

• Increase in impact footprint by 10 percent or more

• Change in the proposed method, scope or location

of mitigation

• Any change that would alter the findings contained

in the Order authorizing the project

DSL will consider new information, input from the public review, and the effect on waters

of this state to determine if a permit modification is appropriate. If approved, DSL will

issue a revised permit (if the permit is active) or a modification letter (if the permit has

expired but mitigation monitoring is ongoing). If a proposed modification is so

substantial that it changes the project purpose or the range of alternatives that could be

considered, DSL reserves the discretion to deny the request and require that a new

permit be applied for.

Agency-Initiated Modification

There are circumstances where DSL may modify existing conditions or add new

conditions to a permit. Examples include:

• Any time unanticipated adverse effects to waters of this state are identified

• During renewal, or at the anniversary date of issuance of a multi-year permit, if

changes in the administrative rule, standards, or DSL policy warrant modification

of the permit

• DSL receives new or additional information

If DSL finds a permit modification is necessary, the Aquatic Resource Coordinator will

contact the permittee to explain the nature of and rationale for the modification. The

permittee may have the opportunity to provide input before the modified permit is

issued.

Special Permitting Situations

Projects governed by the following state and federal siting authorities are handled

differently than the standard removal-fill application process:

• Energy-Related Projects (above a certain size) – Oregon Department of

Energy (Energy Facility Siting Council (EFSC))

Requests for in-water work

extensions: Requests for in-

water work extensions must be in

writing (typically via e-mail) and

include the reason for the

extension. Fill out and include the

In-Water Work Period Variance

Request. DSL will coordinate with

ODFW to consider the request. If

approved by DSL, the extension

may include additional permit

conditions. In-water work

extensions must be posted at the

work site.

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• Solid Waste Landfills – Oregon Department of Environmental Quality

(Environmental Quality Commission)

• Correction Facility Siting – Oregon Department of Corrections (Corrections

Facilities Siting Authority)

• Ocean Renewable Energy Facilities see section above under General

Authorizations under Chapter 5

Energy-Related Projects (EFSC):

The permitting process is controlled and dictated by DOE. A removal-fill application is to

be submitted to DSL through the lead agency and at their direction.

JPAs for EFSC projects do not require county signature, alternatives analysis,

landowner signature (except for permitee responsible compensatory mitigation),

incumbency certificate, local land use signature, or identification of adjacent

landowners. These items are not required because the project is reviewed under an

overarching process as shown below:

• Notice of Intent: The applicant submits a Notice of Intent to the siting authority.

The siting authority sends the notice to DSL and other state agencies for review.

DSL determines if a removal-fill permit is required and if other information, such

as a wetland delineation, is required as part of the removal-fill permit application.

• Application for certification: The applicant applies for approval or site

certification to the siting authority. If a removal-fill permit is required, the

application to the siting authority contains a Joint Permit Application and all the

required attachments. DSL conducts a completeness review of the JPA in a

timeframe that meshes with the process of the siting authority. The results are

provided to the siting authority.

• Public notice: Once a complete application is received, the siting authority

conducts their certification process, which includes a public notice.

• Comments: Comments received during the public notice conducted by the siting

authority are forwarded to DSL. DSL provides input to the siting authority if there

are comments relative to the removal-fill permit that need to be addressed by the

applicant.

• Removal-fill permit conditions: DSL provides permit conditions to the siting

authority. The siting agency includes those conditions in their approval

documentation which includes a requirement that DSL issue a permit with the

exact conditions.

• Removal-fill permit: A final removal-fill permit is issued to the applicant within

the timeframe specified by the siting authority. The final permit must contain the

exact conditions as those provided to the siting authority previously.

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• Permit expiration: The permit is not subject to expiration through DSL’s

process. However, conditions in the permit may have requirements that are time

sensitive.

• Enforcement authority: DSL will retain over the removal-fill permit conditions.

Oregon Department of Corrections and Solid Waste Landfills

For projects approved under these authorities, a removal-fill permit must be applied

for and DSL is obligated to issue a permit. A complete application and delineation

(including fees) must be submitted to Department of State Lands.

Consult with the approving authorities project manager early in the process to

identify the exact process that must be followed. JPAs for these projects generally

do not require county signature, alternatives analysis, landowner signature (except

for permitee responsible compensatory mitigation), incumbency certificate, local land

use signature, or identification of adjacent landowners. These items are not required

because the project is reviewed under an overarching process. A public review

period will be provided by DSL.

Permit-Related Appeals

Appeals by the Applicant

An applicant may request a contested case hearing if:

• The application has been deemed incomplete

• The GA notification has been determined ineligible

• A permit has been denied

• There is an objection to any conditions contained in the permit

Appeals by Third Parties

Persons that are “aggrieved” or “adversely affected” by

a permit decision or a condition therein can request a

hearing. (There is no opportunity for third party appeals

in GA eligibility determinations.)

The Hearing Request

Requests for a contested case must be submitted in writing to DSL, within 21

calendar days of the associated DSL decision. The request must identify the

specific reasons for the appeal. It is important to note that only those issues raised

in the request will be considered during the hearing.

A person is “aggrieved” if they

provided timely comment stating the

merits of the proposed removal-fill

during public review of permit

applications.

A person is “adversely affected” if

they have a legally protected interest

that would be harmed, degraded, or

destroyed by the authorized project.

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Generally, DSL will respond to the request for a contested case hearing within 30 days

of receipt of the request for hearing. The response will include a determination of

whether the contested case hearing is granted, and if so, notification that the matter

was referred to the Office of Administrative Hearings. The response will also include a

notice of the appealing party’s rights and responsibilities and a general description of

the contested case hearing process.

The Office of Administrative Hearings will contact the party requesting the hearing to

schedule a pre-hearing conference, often conducted by telephone. At the pre-hearing

conference, the administrative law judge will set a date for hearing.

DSL may suspend a permit pending a contested case hearing. Petitions to suspend a

permit must be submitted to DSL in writing. A permit will not be suspended unless the

aggrieved or adversely affected party makes a showing, by clear and convincing

evidence, that implementation of the permit would cause irremediable damage or

would be inconsistent with ORS 196.600-196.990.

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Chapter 7: Emergency Permits

Chapter Overview

What is an Emergency?

Within the context of the Removal-Fill Law, an emergency is a circumstance that poses

an immediate and direct threat to public health, safety, or substantial property. If the

actions necessary to alleviate the threat involve 50 cubic yards or more of removal or fill

below a waterway’s ordinary high water (OHW) elevation or in wetlands, or any amount

of removal or fill in designated Essential Salmonid Habitat (ESH), State Scenic

Waterway (SSW), or mitigation site, a DSL permit is required and may be authorized as

an expedited emergency permit (EP).

The Procedure for Obtaining an Emergency Permit

• Step 1: The applicant must provide information including location, nature and

cause of the threat, the condition of the waters of this state, and what action is

necessary to alleviate the immediate threat. Remedial actions must be limited to

the minimal amount of impacts necessary prevent irreparable harm, injury or

damage to persons or property.

• Step 2: Contact DSL to initiate the EP process.

o During Business Hours: 503-986-5200 (west of Cascades) or 541-388-

6112 (east of Cascades)

o After Business Hours: Oregon Emergency Response: 1-800-452-0311

• Step 3: Submit the EP application materials as directed by the DSL Aquatic

Resource Coordinator and as time allows. DSL may conduct a site visit or ask

another designated agency, such as ODFW, to do so.

• Step 4: Qualifying activities will be issued a written permit as soon as key

information is provided. DSL can issue a verbal approval in advance of the

written approval where it is necessary to protect public health, safety, or property.

After the Emergency

DSL staff may visit the site upon completion of the emergency work and may require the

project be modified or require mitigation to compensate for any impacts to the affected

wetland or waterway. A subsequent permit may be required to conduct remedial work.

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What is an Emergency?

Oregon Administrative Rule defines an emergency as natural or human-caused

circumstances that pose an immediate threat to public health, safety, or substantial

property, including cropland. DSL will use this definition and apply all the following

considerations to assess whether an activity in wetlands or a waterway is eligible for an

Emergency Permit (EP):

• Does the emergency pose a direct threat to public health or safety or substantial

property, including but not limited to a dwelling, transportation structure, farm, or

cropland?

• Does the nature of the threat allow enough time to obtain some other form of

permit or is prompt action required to reduce or eliminate the threat?

• Is the proposed project the minimal amount necessary to reduce or eliminate the

threat and minimizes, to the extent practicable, adverse impacts to waters of this

state?

The Procedure for Obtaining an Emergency Permit

Step 1: Before Contacting DSL - the Emergency Situation Must be Documented

To support a determination an emergency exists and to facilitate approval of the

emergency action, the applicant should be prepared to provide the following information

during the first contact with DSL:

• The type of property at risk

• The cause of the threat

• The reason prompt action is necessary and why there is not enough time to

obtain another type of permit

• The location, including township, range, section, tax lot, and latitude and

longitude

• The date the damage or threat was first observed or the date of the event that

precipitated the threat

• The nature of the habitat being affected (e.g., if bank erosion, the slope and soil

texture of the bank, types, and extent of vegetation in the vicinity)

• What action(s) are necessary to alleviate the immediate threat, including:

volumes and area of removal or fill, construction methods, construction timeline

and other project specific information to allow DSL to understand the proposed

emergency work

• Photos of the damage and proposed treatment area

Chapter 7: Emergency Permits

7-3

• The name and contact information of consultants or engineers working on the

emergency project

• Property owner information, including permission to conduct the emergency work

Actions must be limited to what is necessary to alleviate the emergency: Because

the purpose of an EP is to alleviate the emergency situation, it is important the project

be the least amount of work needed to alleviate the threat and minimize adverse effects

to waters of this state. Additional removal or fill activities beyond that necessary to

alleviate the immediate threat are not allowed under an EP.

Some emergency actions may be exempt from a DSL permit requirement: Two

exemptions are commonly applied in emergency situations:

• Emergency repair to currently serviceable roads, bridges, and other

transportation-related structures

• Maintenance of certain water control structures

Exemptions are further discussed in Chapter 3: What Activities Are Exempt? It is

recommended that the exempt status of a proposed action be confirmed with a DSL

Aquatic Resource Coordinator before proceeding.

Step 2: Contacting DSL

Once the emergency situation has been documented, DSL should be contacted as soon

as possible.

During Business Hours: Normal business hours are Monday – Friday, 8:00 a.m. to

5:00 p.m. Requests for EPs are initiated by calling the Salem office (503-986-5200) on

the west side of the Cascades; and the Bend office (541-388-6112) on the east side.

The Aquatic Resource Coordinator serving the appropriate county will handle the EP

request.

After Business Hours: If the nature of the emergency is such that waiting until regular

business hours is not possible, the Oregon Office of Emergency Management (Oregon

Emergency Response System) should be contacted (1-800-452-0311). The operator

will take information regarding the emergency and contact the appropriate agency for

immediate follow-up.

Response from DSL upon Contact: DSL will provide the following guidance during the

initial contact:

• Determine if a permit is required from DSL for the proposed action and if the

action is eligible for an EP

• Discuss what other information may be needed to process the request

• Explain the process and timeframe for making a final decision

• Provide an EP application form

• Arrange for a site visit as time allows and as necessary

• Determine if we will issue a verbal approval during the first contact

7-4

If there is sufficient time to prepare an application, the applicant will be asked to do so. If

there is not sufficient time, and an emergency has been confirmed, DSL can issue a

verbal authorization. If DSL issues a verbal authorization, a written authorization will be

issued within five calendar days. The application should be submitted as soon as

possible after the emergency work, generally the next day.

Aquatic Resource Coordinators will document the verbal authorization in the EP file,

including volumes of removal or fill, design of the emergency work and construction

methods authorized. To avoid enforcement action, the application must reflect what was

authorized verbally.

Depending on the nature of the emergency and the scope of the proposed action, DSL

staff may conduct a site visit or request local ODFW staff to visit the site to verify the

emergency situation, evaluate the appropriateness of the proposed action, and develop

site-specific EP conditions that may be warranted.

Contacting Other Agencies: DSL will typically contact the local ODFW office to get

input on the emergency situation and what changes may be incorporated into the

proposed action to limit impacts to waters of this state. Applicants may contact the

ODFW field office directly to get input on the proposed action.

The emergency work may require approval from the Army Corps of Engineers, which

may be contacted at 503-808-4373 (Portland office) or 541-465-6877 (Eugene office).

Step 3: Submitting the EP Application

Submittal Requirements: The emergency application form is available on the DSL

Website (Forms) and by e-mail or fax upon request. The emergency application must

be filled out completely and sent back to the appropriate DSL office by mail or

electronically. The information required by DSL on the application includes:

• Applicant name, address phone number, fax, and e-mail

• Entity responsible for performing the activities

• Landowner permission (if different from the applicant)

• Project location (Township, range, section, tax lot, and latitude and longitude)

and driving directions

• Date the threat (for example, erosion or landslide) occurred

• The need for the project including an explanation the nature of the direct threat to

public health, public safety, or property

• Specific description of the proposed project (dimensions, amount of material to

be removed and/or filled in wetlands or waterway)

• A determination if the project is a permanent or temporary solution

• Construction schedule

• Construction plan (how the work will be accomplished, equipment used, site

access, etc.)

• Drawings including a location map, plan view, and cross section view

7-5

• Photos

Timelines for Processing the Emergency Application: State law and administrative

rules do not establish a timeline by which DSL must make a decision for an EP. DSL

understands that time is of the essence when an emergency exists and will act as

promptly as possible to provide a timely decision.

Application Fees: The EP may be subject to an application fee according to the current

fee schedule. If a fee is applicable, the amount will be identified in the permit. Payment

is due within 45 days of the permit issuance date.

Step 4: Receiving Approval

Verbal and Written Approvals: If the nature of the emergency is such that an

immediate approval is necessary to protect public health, safety or substantial property,

DSL may issue a verbal approval as soon as sufficient information is provided to make

an informed decision. At the time a verbal approval is provided, the Aquatic Resource

Coordinator will explain the location and volumes of removal or fill being authorized and

any special conditions required to protect the aquatic environment.

If a verbal approval is given, it will be followed up with a written approval within five

days. A written approval will include:

• The party authorized and responsible for the work

• The location and types and volumes of material authorized for removal-fill

• Best management practices to minimize effects on the waterway

• Other permit conditions specific to the site

• ODFW pre-action notification requirement

• Any post project reporting requirements

• Expiration date

• Permit conditions for follow-up work

If DSL determines that the situation or the proposed action does not qualify for an EP,

the applicant will be informed of the reason(s) why. The applicant may apply for

approval through DSL’s standard permitting options.

Conditions of Approval: The person identified on the EP is responsible for complying

with the permit conditions, including, but not limited to:

• Use of certain erosion control methods

• Planting requirements

• Post-project reporting

• Mitigation for adverse impacts

• Project modifications post construction

• Requirement to apply for a removal-fill permit once the emergency situation has

subsided

• Other practices and conservation measures necessary to protect the aquatic

environment

7-6

A site visit does not eliminate the permittee’s responsibility to provide a post-

construction report stipulated in the EP.

Expiration of the Emergency Permit: The term of the EP will be limited to the time

necessary to reasonably complete the proposed action. EPs are typically valid for no

more than 60 days. The expiration date will be clearly identified in the written permit. If

the work cannot be completed by the expiration date, a new permit must be obtained.

After the Emergency

Because the review of emergency application is expedited and there is usually not the

opportunity for agency input, certain follow-up actions are usually required.

Site Visit

DSL staff may visit the project site upon completion of the emergency work. The

purpose of such a visit will be to determine if:

• The project was conducted as authorized in the EP

• Any project modifications are needed to minimize effects to the wetland or

waterway

• There are permanent effects that require mitigation

• If further site monitoring is required

Additional Work May Be Required

DSL may require the project be modified after the initial emergency work is completed.

If the emergency work is determined to be non-sustainable or to present an

unacceptable level of impact to the aquatic environment, a modification of the

emergency work may be required. For example, if riprap is allowed under an EP, the

applicant may have to remove the riprap, slope the river bank and plant woody

vegetation as a more permanent solution to the erosion problem with less adverse

effects. This work may require a separate authorization and would need to be done in

the next in-water work period.

If impacts incurred from an emergency action are allowed to remain, the applicant may

be required to provide compensatory mitigation. Mitigation actions may include

purchase of credits from a mitigation bank, planting riparian vegetation, or other actions

necessary to offset the adverse effects of the emergency work. Depending on the

nature of the required mitigation, a separate DSL approval may be required.

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Chapter 8: Compensatory Mitigation Planning for Aquatic Resources

Chapter Overview

When applying for a permit to impact waters of this state, the applicant is required to

“mitigate” these impacts. Mitigation is a process to reduce the effects of the proposed

project and includes avoidance and minimization. This chapter assumes that all

possible steps have been taken to avoid and minimize the impacts and the applicant

now needs to replace or “compensate” for the ecological characteristics (functions) and

societal benefits (values) that will be permanently lost.

The success of a mitigation project depends upon multiple factors including appropriate

siting, a sound project design and monitoring plan, the site’s ability to be self-

maintaining, and long-term protection. Compensatory mitigation will normally require the

assistance of trained professionals (such as environmental consultants) to assure that

projects are successful and that plans and reports contain sufficient detail to satisfy the

Department’s requirements.

This chapter covers the key topics for planning a successful compensatory mitigation

site, including:

• Evaluating project impacts based on acreage/linear feet, impact type, and

functions and values of impacted waters of the state

• Selecting the appropriate compensatory mitigation that will best offset those

impacts

• Using the eligibility and mitigation accounting protocols

• Special considerations for Aquatic Resources of Special Concern, minor wetland

impacts, and buffers

• Generating credits at a new mitigation bank or in-lieu fee site

• Mitigation scenarios that illustrate the application of the eligibility and accounting

protocols

This guidance is applicable to compensatory mitigation for unavoidable impacts to both

wetlands and waterways.

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Evaluating Project Impacts

If a removal-fill permit is required, then, during the application process the applicant

should evaluate both the direct and indirect impacts to waters of this state that are

proposed to occur due to the project. Below are examples of indirect impacts:

• The project changes the direction of surface flow or cuts off water flow to

wetlands resulting in draining wetlands

• A project increases hydrology discharged to a wetland converting it to open water

(e.g., pond)

• A bridge is constructed that shades the waters of this state

Wetlands and waterways at the project site will be evaluated based on the area,

location, and type (class, flow permanence, size, ESH designation) as well as the

functions and values they provide. As discussed later in this chapter, this information is

necessary to determine whether the proposed mitigation is eligible to compensate for

the impacts proposed. Compensatory mitigation must provide an ecological match to

the impacted waters of this state. The eligibility determination will result in improved

environmental outcomes and supports achieving a watershed-based approach by

establishing minimum ecological standards for mitigation site approval prior to

determining the resource impact and replacement ratios (e.g. credits/debits) associated

with the proposed impact and mitigation sites.

Selecting the Appropriate Compensatory Mitigation

Compensatory mitigation (CM) involves activities conducted by a permittee or third party

to create, restore, enhance, or preserve the functions and values of the waters of this

state. The goal of CM is to compensate for adverse impacts to waters of this state that

occur during authorized removal-fill activities or through resolution of unauthorized

removal-fill activities.

Forms of Compensatory Mitigation

There are several forms of compensatory mitigation that are available to the public:

• Using a mitigation bank: Purchase of mitigation bank credits from a DSL and

Corps’ approved wetland mitigation bank or in-lieu fee program.

• Using advance mitigation: Use of credits from a previously developed,

permittee-responsible CM site. DSL must have pre-approved the credits for use

by the applicant or one additional named party.

Chapter 8: Compensatory Mitigation Planning for Aquatic Resources

8-3

• Permittee-responsible mitigation: CM constructed by the permittee, or their

agent, as a condition of removal-fill permit to offset authorized impacts. Permittee

remains responsible for mitigation site performance for the duration of the

monitoring period. Permittee-responsible mitigation may be on-site or off-site.

• Using the payment-in-lieu mitigation program: Payment to DSL in-lieu of

mitigation by any other means described above. Note that this is not a Corps

approved program and will not satisfy federal mitigation obligations. Restrictions

may apply. For proposed impacts greater than 0.2 acres, payment-in-lieu

mitigation is the CM method of last resort and should only be used when no other

method is practicably available. DSL may use evidence presented by the

applicant, public, or its own investigations to determine whether other practicable

CM methods exist

Using The Principal Objectives

The goal of the principal objectives is to direct CM to the appropriate place(s) and

ecosystem processes that will result in successful and meaningful mitigation. Rather

than applying a strict hierarchy of mitigation forms, the applicant is asked to consider

the specific proposed effects of their removal-fill project and select the mitigation

opportunity(ies) that will best offset those effects (i.e., maximize the principal

objectives).

The applicant should consider the principal objectives in the early stages of their

mitigation planning and focus the CM plan on the option(s) that best address the

objectives. DSL does not intend for the objectives to be used as a hierarchy or in a

pass-fail manner. In most cases there is no single mitigation option that will maximize all

objectives concurrently. Some forms of mitigation are inherently better suited to meeting

a particular objective. For example, banking options will usually best serve to minimize

temporal loss whereas permittee responsible mitigation can often better provide for local

replacement of locally important functions.

DSL does not intend that these principal objectives lead to conflicting mitigation

directives or requirements between the state and federal mitigation programs. DSL

believes the principal objectives are compatible with the 2008 federal mitigation rule (33

CFR) and expects consistency between the two regulatory programs as it relates to

preferences for the most appropriate CM method(s) for a given project.

CWM proposals for projects involving 0.2 acres or less of wetland impacts may use

mitigation banks, in-lieu fee, or payment in-lieu mitigation without addressing how the

selected CM method addresses or maximizes the principal objectives. There is no

threshold for impacts to non-wetlands or Aquatic Resources of Special Concern

(ARSC).

8-4

The principal objectives of compensatory mitigation are to:

• Replace functions and values lost at the removal fill site: This is considered

and documented by means of a functions and values assessment of the

proposed impact site and predicted (post-CM project) conditions at the CM site,

at minimum. Guidance on how to complete assessments of existing and

predicted conditions can be found in the ORWAP User’s Manual and the SFAM

User’s Manual.

• Provide local replacement for locally important functions and values, where

appropriate: This is considered and documented by showing how on- or near-

site mitigation opportunities have been maximized when locally important

wetland functions are anticipated to be lost at the impact site. “Locally important”

may be informed by: significance determinations by the community as part of

locally adopted Goal 5 work; high values scores as determined by the functions

and values assessment method being applied; needs identified in an adopted

watershed management plan; input from ODFW considering that agency’s

habitat mitigation policy; and input received during the public review process.

• Enhance, restore, create, or preserve waters of this state that are self-

sustaining and minimize long-term maintenance needs: Proposed CM

should be shown to be self-sustaining with a minimum of long-term intervention

needs (e.g., artificial hydrology inputs, structure maintenance and repair, etc.).

• Ensure the siting of CM in ecologically suitable locations: A foundation of

successful CM is the selection of a site with characteristics that will support the

restoration, creation and enhancement of self-sustaining and ecologically

relevant wetland functions and services. Site suitability considerations for

selecting and evaluating a CM site are provided below. These considerations

should not be used as mandatory criteria nor viewed as an all-inclusive listing,

rather, they are offered as a good starting point for CM sites’ evaluation. Spatial

data that supports many siting considerations is available on Oregon Explorer in

the Aquatic Mitigation topic page and the Mitigation Planning Map Viewer.

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• Minimize temporal loss: To the extent that a CM method can provide for

mitigation site development in advance of a function and value loss at the impact

site, temporal loss is reduced. Temporal loss should become a significant

consideration where substantial time is anticipated to recreate the lost

(permanently impacted) functions and values of state waters (e.g., forested

wetlands).

CM Siting Considerations

When evaluating sites for the purposes of compensatory mitigation development, there

are some important considerations to make to help ensure a successful mitigation effort.

• Consider the watershed position:

o Position of the site in the watershed relative to the functions and services

targeted for replacement

o Position of the site in the watershed where target wetland type would be

expected to occur naturally

o Position of the site relative to other waters to ensure federal jurisdiction under

Section 404 of the Clean Water Act.

• Consider watershed processes within the site’s watershed that have been

historically degraded and could be improved by CM development. Some sources

of information can be found in Appendix A.

• Consider the site’s connectivity to other protected habitats. For example:

designated parks, refuges, special management areas, or conservation

easement protected areas.

• Consider the site’s ability to support the restoration, creation, or enhancement of

wetland or waterway types that will replace functions and values lost or impaired

at the impact site.

• Consider the proximity of CM site to the impact site

where relevant to replace locally important wetland

functions.

• Consider the suitability of the physical characteristics

presented by the site including the reliability and

availability (e.g., water right) of hydrological sources

and suitable soil or geologic characteristics for the

target waters type or class.

• Consider whether the site supports local watershed needs or priorities (e.g., as

documented in a local watershed management plan) and/or local, regional or

statewide conservation strategies (e.g., location of the site relative to a mapped

For proposed impact to tidal

waters, CM must be located within

the same estuary unless the

Director of DSL determines that it

is environmentally preferable to

forgo this limitation.

8-6

“Conservation Opportunity Area” as defined in ODFW’s “Oregon Conservation

Strategy”).

• Consider the extent to which site characteristics will minimize significant long-

term maintenance needs beyond the monitoring period to maintain functionality.

(For example, consider long-term management issues such as invasive species

control when seed sources are nearby, or the need for water control structures

that will require regular/long-term maintenance).

• Consider the extent and functionality of upland buffers adequate to support and

protect functionality of the mitigation site.

• Consider the presence of conflicts and stressors:

o Extent of human disturbance that would reduce the site’s viability as a

functionally sustainable site (e.g., presence of contaminants; pollutant or

sediment runoff into the site; or recreational uses that would reduce the

benefits to wildlife habitat).

o Presence of any legal constraints or restrictions that would conflict with the

site’s development as CM or the establishment of a legal protection

instrument for the CM.

o Presence of any adjacent or other nearby land uses or land use designations

that could have an adverse effect on CM functionality or sustainability.

o Presence of any adjacent or other nearby land uses or land use designations

that could be adversely affected by CM development.

• Consider the site’s ability to achieve multiple natural resource goals (e.g.,

address an established TMDL; accommodate state and/or federal threatened

and endangered species recovery efforts).

Timing of CM Implementation

As a condition of the removal-fill permit, DSL will typically require that the CM be

performed prior to, or concurrent with, the proposed impact (i.e., fill or removal in waters

of this state). This means that at a minimum, earthwork at the CM site must be

completed within the same construction season (typically spring-summer-fall) as the

authorized impact. Where necessary, a phased approach to CM may be conducted. For

example, if 50% of the authorized impact is to be done in one construction season, then

50% of the mitigation (considering the mitigation ratios) must have completed earthwork

in that same season. “Earthwork” includes all manipulations of the land proposed in the

CM Plan such as excavation, grading, ditch plugging, dike breaching, and sub-surface

drain interruption.

DSL may approve non-concurrent CM if the applicant can demonstrate, to the

satisfaction of DSL, sufficient rationale for the delay or sufficient evidence that there is a

benefit to the aquatic resource by performing the CM non-concurrent to impacts. Non-

concurrent CM may only be approved by DSL with compelling rationale (e.g., site

8-7

preparation) and for the shortest practicable time. Administrative rules allow for an

increase in the mitigation obligation to account for the construction delay (OAR 141-

085-0692(4)(f)). Generally, DSL will start with a minimum 25% increase in the mitigation

ratio for each construction season of delay with the potential for greater increase if the

impacted wetland supports particularly high function(s) or value(s). For example, using

the 25% multiplier, a mitigation site with a calculated ratio of 1.5 (acres of impact) x 1.25

(1:1 minimum mitigation ratio with 25% multiplier added) = 1.875:1 for one construction

season of delay; 2.25:1 for two construction seasons of delay; etc. Generally, increases

to the mitigation ratio due to non-concurrent CM execution should not exceed double

the originally calculated mitigation ratio if the mitigation site is fully constructed within 5

years or less of project impacts.

Special Requirements

Restoration as CM

Restoration is defined as the re-establishment of a former water of this state (and will

most often refer to wetlands). In many places throughout Oregon, former wetlands have

been either filled, drained, or converted to unvegetated, perennially open water.

Historically, waterways have been re-routed away from their historic flow-paths and

riparian corridors. CM plans using restoration must provide documentation

demonstrating that the site was formerly a wetland or waterway. To demonstrate that a

wetland or waterway existed in the past, provide the following types of evidence, as

applicable:

• A current delineation showing the area is not now a wetland or waterway. Follow

the delineation guidance to describe evidence of past impacts affecting

remaining wetlands or waterways.

• An NRCS soil survey map showing hydric soils at the site (for wetlands). Soil

survey mapping is typically at a much coarser scale than is required for

delineation, so onsite soil data is typically needed to verify the presence and /or

boundaries of relict hydric soils. The soil sampling should demonstrate the

presence of relict hydric soil indicators according to the Delineation Manual and

Supplements. Alternatively, a qualified soil classifier may present evidence that

the soils match the profile of a soil map unit recognized as hydric.

• If hydric soils have been buried beneath fill material, sample pits at the perimeter

of the fill, or a test pit excavated or augered through the fill may be needed. If

soils have been deep ripped or otherwise highly altered, relict hydric soil

indicators may be absent altogether, in which case the existence of former

wetlands may not be provable.

• Historic photos showing a strong photo signature of wetlands or waterways prior

to evident filling, draining, or impoundment. Provide the dates of each photo.

• Topographic maps showing that the site is in a landscape position conducive to

the occurrence of wetlands or waterways. Comparison to existing nearby

wetlands in the same landform, if any, can be helpful.

• Evidence that the water sources that previously contributed to wetlands or

waterways were diverted or drained via manipulations such as tiling, ditching, or

diking. Provide the approximate date that the hydrology manipulation took place.

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Map the locations of all known tile lines and outfalls, and distinguish known from

speculative tile locations.

Enhancement as CM

Enhancement means to improve the condition and increase the functions and values of

an existing degraded wetland or other water of this state. Existing wetlands or

waterways as CM may only be accepted if all the following conditions are met:

• Is conducted only on degraded wetlands or other waters of this state

• Results in a net gain in functions and values

• Does not replace or diminish existing wetland or waterway functions and values

with different ones; unless the applicant sufficiently justifies that this replacement

or diminishment is ecologically preferable

• Does not consist solely of the conversion of one HGM or Cowardin class to

another

• Identifies the causes of wetland or waterway degradation and reverses,

minimizes, or controls those causes as part of the CM plan

• Does not consist solely of removal of non-native, invasive vegetation and

replanting or seeding of native plant species

• Is not for the replacement of eelgrass habitat

When evaluating a potential CM site, first determine whether the wetlands or waterways

are degraded. By definition, “Degraded” refers to a water of this state with diminished

functions and values. For wetlands, degradation must include hydrologic manipulation

(such as diking, draining, and filling) that demonstrably interferes with the normal

functioning of wetland processes. Simply having a high cover of non-native or invasive

vegetation does not qualify the site as degraded. There must have been hydrologic

manipulation, and it must have been significant enough to have permanently affected

the condition of the area being proposed for enhancement.

To qualify for enhancement, the cause of degradation must be identified, and the

mitigation strategy must reverse the cause of degradation. The following activities cause

hydrologic degradation:

• Excavation of drainage ditches

• Drain tiling (lined or tiled subsurface drainage)

• Diking to exclude water

• Placement of fill

• Diversion of water source

• Drowning (addition of unnatural water source/depth/duration)

• Obstructions to tidal regime

For these types of activities, DSL may assess the zone of influence – the area

hydrologically degraded by the activity. For example, a ditch along one edge of a

wetland in high clay soils may have a narrow zone of influence.

Activities that do not result in significant hydrologic degradation are:

8-9

•

Grazing

•

Compaction

•

Leveling

•

Plow lines

•

Logging

•

Subsoiling (practice to temporarily fracture soils)

•

Moling (unlined subsurface drainage)

•

Roadside ditches

If the site is degraded, determine whether the cause of degradation can be reversed,

minimized, or controlled such that a net gain in functions and values can be

accomplished. The net gain is the difference between the predicted function and values

and those that currently exist at the site. Enhancement applies only to the area that is

clearly affected by the reversal of the cause of degradation.

Preservation as CM

Preservation as CM relies on preventing the decline of, and threat to, the exceptional

ecological features of existing water of this state. Preservation represents a net loss of

area and functions of waters of this state in the near term in exchange for long term

protection and maintenance through implementation of appropriate legal and physical

mechanisms. Preservation is the preferred CM option (after all practicable avoidance

and minimization measures have been sufficiently implemented during the removal-fill

application process) when the aquatic resource type is exceptionally difficult to replace

(such as an ARSC).

Applicants must demonstrate that the aquatic resource proposed for preservation is

under threat of destruction or adverse modification (including zoning that allows for a

land use that could result in significant modification or adverse effect to existing

functions and values). The preservation site must also meet at least one of the following

to demonstrate the exceptional ecological features of the aquatic resource:

• The site supports a significant population of rare plant or animal species.

Oregon’s list of rare, threatened and endangered species is maintained by the

Oregon Biodiversity Information Center.

• The site is a rare type with a state rank of S1 or S2. Rankings are maintained by

the Oregon Biodiversity Information Center and are based on rare plant

associations. Types are listed on the Oregon Wetlands Explorer National

Resources Digital Library.

• The preservation site is an ARSC.

• The preservation site, with existing and ongoing management, is in good

condition and is highly functioning (as determined using a DSL-approved

assessment method). Preservation must also accomplish at least one of the

following:

o Serves a documented watershed need; or

While moling can cause

hydrologic degradation of the

site, the effective life of these

channels varies. The applicant

should document when the

moling occurred and document

that they continue to affect

drainage at the site.

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o Preserves wetland types disproportionately lost in the watershed.

Watershed needs may be found in documents such as local watershed assessments,

(e.g. Oregon Watershed Enhancement Board Restoration Priorities), and water quality

management plans (e.g. Oregon Department of Environmental Quality). Sources of

information regarding historically and disproportionately lost wetland types in Oregon

may be found at the Oregon Wetlands Explorer.

A suggested outline of materials required for a mitigation plan using preservation is

found in Appendix C. A long-term management plan, funding mechanism, and long-

term protection instrument must be in place prior to permit issuance for projects

involving preservation as CM.

Protocol for Eligibility and Mitigation Accounting

DSL requires a two-step eligibility and accounting process for proposing CM:

• Step 1: Demonstrate that a proposed mitigation site is eligible to offset the

proposed impacts.

• Step 2: Quantify mitigation requirements (in acres for wetlands) using an

accounting worksheet. DSL is still in process of developing an accounting

method for stream impacts.

Information from the Oregon Rapid Wetland Assessment Protocol (ORWAP) for most

wetland impacts, and the Stream Function Assessment Method (SFAM) for stream

impacts, will be used to inform decision-making at both eligibility and mitigation

accounting steps. Outputs representing categories of functions and values, organized

into thematic groups, will be used to inform eligibility, ensuring that functional groups at

the impact site can be replaced at the proposed mitigation site. Outputs representing

specific functions and values will inform the amount of mitigation required, ensuring that

the accounting process reflects the degree to which finer-scale functions and values

are replaced. There are some exceptions to this approach for ARSCs and for minor

wetland impacts that are detailed later in this chapter.

When no Department-approved assessment method is applicable to the aquatic

resource, best professional judgement, using the functions and values outlined in

ORWAP or SFAM, as appropriate, will be used to assess the group-level functions and

values for determining eligibility.

Step 1: Eligibility

Standard Approach

In this step, it is demonstrated that an existing or proposed CM site meets criteria to

provide an ecological match for the impact.

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First, the CM site must be located within the same 4

field Hydrologic Unit Code or

within a service area of a bank or in-lieu fee covering the impact site. Impacts to tidal

waters must be replaced in the same estuary, unless DSL determines that it is

environmentally preferable to forgo this limitation. DSL may direct applicants to more

localized (e.g., 5

field HUC or smaller watershed) mitigation opportunities when

warranted as a result of: application of the principal objectives for CM; impact site

functions and values assessment that identifies wetland service(s) of high function and

value; input from public review process; or a watershed management plan or other

locally adopted plan that identifies wetland services critical for retention within a smaller

landscape.

For wetlands and tidal waters

an ecological match also means:

• Same wetland or tidal water type(s);

o Hydrogeomorphic (HGM) class and subclass, and

o Cowardin system and class (discretion is allowed; the Department could

choose to approve a mismatch if the applicant can demonstrate

satisfactory rationale for a difference in Cowardin class); and

• Group-level function & value replacement. The applicant must demonstrate that

impacted functions and values are replaced, at the group level, by the functions

and values at the mitigation site (see Figure 8-1).

Tidal waters are the areas in estuaries, tidal bays and tidal rivers located between the highest measured

tide and extreme low tide (or to the elevation of any eelgrass beds, whichever is lower), that is flooded

with surface water at least annually during most years. Tidal waters include those areas of land such as

tidal swamps, tidal marshes, mudflats, algal and eelgrass beds and are included in the Estuarine System

and Riverine Tidal Subsystem as classified by Cowardin (ORS 141-085-0510(23))

Figure 8-1. Example of comparison of ORWAP groups. All function and value group ratings at the impact

site are sufficiently replaced by the function and value group ratings at the proposed mitigation site.

Assuming that this mitigation site also provides a class match (HGM and Cowardin) to the impact sites, it

is eligible to offset the authorized impacts.

8-12

For waterways, an ecological match also means:

• Same stream type(s):

o Flow permanence match (intermittent or perennial),

o Stream size class (small, medium, or large as defined by Oregon

Department of Forestry in OAR 629-635-0200(13) and (14)), and

o Essential Indigenous Anadromous Salmonid Habitat (ESH) designation, if

the impact is to an ESH stream; and

• Group-level function & value replacement. The applicant must demonstrate that

impacted functions and values are replaced, at the group level, by the functions

and values at the mitigation site (see Figure 8-2).

Exceptions for Watershed Priorities

While the above approach for CM would be the standard approach (in-kind), in some

circumstances, depending on the nature of the impact and the quality of the proposed

CM, a project may meet exceptions for replacement by class and functions and values

being impacted. To be approved for an exception to the standard eligibility criteria, the

applicant must demonstrate that the proposed mitigation site (out-of-kind) addresses

local or watershed needs or priorities that provide significant benefit compared to what

Group-level replacement is achieved when the function and value ratings of ORWAP groups at the

mitigation site match or exceed those at the impact site. The Rating Break Proximity output on the

ORWAP score sheet provides notification to permit applicants and reviewers when a score is within the

repeatability error of a break between rating categories. This notification indicates that replacement

may be achieved even if ratings do not explicitly match. “LM” indicates that the score is within the

repeatability error of the break between Low and Moderate ratings, while “MH” indicates that the score

is within the repeatability error of the break between Moderate and High ratings.

Figure 8-2. Example of comparison of SFAM groups. All function and value group ratings at the impact

site are sufficiently replaced by the function and value group ratings at the proposed mitigation site.

Assuming that this mitigation site also provides a stream type match to the impact sites, it is eligible to

offset the authorized impacts.

Group-level replacement is achieved when the function and value ratings of SFAM groups at the

mitigation site match or exceed those at the impact site.

8-13

would be lost at the impact site. This exception is not an option when an impact site is

considered an ARSC and may not be appropriate where an impact site has high-

functioning, locally important functions and/or values. Pre-application correspondence is

highly recommended.

To be approved for an exception to use the watershed priority approach to CM, the

applicant will need to demonstrate in a proposed mitigation plan, to the satisfaction of

agency staff, that the proposed mitigation site meets the following two criteria:

• Addresses a watershed priority, as identified in a planning or assessment

document, report, or other data that considers one of the following:

o How specific types/locations of the project will provide identified priority

aquatic function for the watershed

o Habitat requirements of important aquatic-resource dependent species

o Loss or conversion trends of aquatic resource habitats

o sources of watershed impairment

o Current development trends that adversely affect aquatic resources or

necessitate the presence of aquatic resource functions

o Requirements of other regulatory and non-regulatory programs that affect

the watershed.

• Provides a high level of the functions and values that are relevant to the targeted

priority (either currently or post-construction).

Mitigation plans must include all the following elements to demonstrate that the

proposed mitigation site meets the two aforementioned watershed priority exception

criteria:

• Description of the planning or assessment document(s), report(s), or data

upon which their mitigation plan is based: The description will include when,

how, and by whom the analysis was completed, the geographic area covered by

the analysis, and a summary of any public and private stakeholder involvement in

the analysis, including any coordination with federal, state, tribal, and local

aquatic resource management and regulatory staff;

• Description of the specific priority targeted in the mitigation plan and the

reasoning behind it being considered a priority: The description will include a

summary of the historic loss, causes for the loss, and ongoing threats; and

• Description of how the location, type, functions, and values provided by

the proposed CM site address the targeted priority: The description will

include an appropriate level of field documentation, including a function and

value assessment, data collected at the site, mitigation drawings and

specifications, and any letters from consultation with local agency

representatives (e.g., ODFW, DEQ).

8-14

Step 2: Mitigation Accounting

In this step, an applicant with an eligible mitigation site will estimate the amount of CM

required. The amount is dependent on (1) the degree to which the specific functions and

values impacted are replaced at the proposed mitigation site and (2) mitigation plan

components that may affect the replacement and/or sustainability of functions and

values. For wetland impacts, the applicant will use a worksheet to calculate numerical

values and the total mitigation required. For non-wetlands, the sections and factors may

be used qualitatively to help determine the appropriate amount of CM.

There are five sections in the accounting worksheet. More than one worksheet may be

used when a variety of mitigation plan components apply at the impact site or mitigation

site.

Section 1: Minimum Acreage Requirements (wetlands only)

The minimum acreage requirement ensures that acreage replacement is addressed.

Minimum acreage requirements for wetlands are solely dependent on the proposed

mitigation method. Minimum requirements for waterways are not specified, but generally

should not go below 1:1 until an accounting method is developed. The applicant must

select from:

• Restoration/creation: recognizes replacement of acreage.

• Enhancement: recognizes that there will be a net loss of wetland acreage but

that a net gain in wetland functions and values allows the agencies to achieve

other programmatic mitigation goals (i.e., an increase in functioning on the

watershed level).

• Preservation: recognizes that there will be a net loss of wetland acreage,

function, and value. The purpose of preservation is to prevent a future loss of an

intact/high-value resource that is under threat of development. As per current

practice, regulatory staff will be able to apply case-by-case discretion when

determining the minimum acreage requirement for preservation.

• Credit purchase: includes purchases from mitigation banks or payments to an

in-lieu fee (ILF) program. Note: The mitigation method is accounted for when the

credits for a proposed bank/ILF site are calculated.

Section 2: Increase Factors

Any adjustments applied in this step would result in an increase in the amount of

mitigation required due to two factors: (1) differences between the functions/values lost

at the impact site and the functions/values expected to be produced by the CM project;

and, (2) temporal losses of functions.

• Factor 1: Specific function and value replacement

State and federal regulations specify that CM should replace lost functions of

aquatic resources. Beyond demonstrating ecological match at the group level,

applicants are encouraged to locate and design mitigation sites that offset as

many specific functions and values impacted as possible. Adjustments to the

8-15

Figure 8-3. Example of comparison of ORWAP specific functions and values. Fourteen of the impacted

specific

functions and values are sufficiently offset by the functions and values at the proposed

mitigation site.

ORWAP SPECIFIC FUNCTION AND VALUE COMPARISON (for the accounting step)

Specific function and value replacement is achieved when the ORWAP ratings of both a function and its

associated value at the mitigation site match or

exceed the ratings for that same function and value at

the impact site. The Rating Break Proximity output on the ORWAP score sheet provides notification to

permit

applicants and reviewers when a score is within the repeatability error of a break between rating

categories. This notification indicates that replacement may be achieved even if ratings do not match.

mitigation acreage requirement will be applied to reflect the degree of ecological

match that was achieved (as demonstrated by ORWAP or SFAM outputs).

The applicant will select either:

o “Not applicable”. Sites approved under the exception for watershed

priorities, or when a Department-approved method is not applicable, are

not subject to adjustments based on degree of ecological match.

OR,

o The specific number of functions and values matched. Applicants

must compare each specific function and value between the impact and

mitigation sites to determine the number for which replacement was

achieved (see Figure 8-3 for a wetland example using ORWAP). The

adjustment factor increases as the number of unmatched functions/values

increases.

IMPACT SITE

SPECIFIC FUNCTIONS & VALUES

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Water Storage & Delay (WS)

High

Low

Sediment Retention & Stabilization (SR)

Moderate

Phosphorus Retention (PR)

High

Moderate

Nitrate Removal & Retention (NR)

Moderate

Anadromous Fish Habitat (FA)

Low

Resident Fish Habitat (FR)

Low

Amphibian & Reptile Habitat (AM)

Moderate

Waterbird Nesting Habitat (WBN)

Low

Waterbird Feeding Habitat (WBF)

Moderate

Low

Aquatic Invertebrate Habitat (INV)

Moderate

Low

Songbird, Raptor, Mammal Habitat

(SBM)

Low

Water Cooling (WC)

Low

Native Plant Diversity (PD)

Moderate

High

Pollinator Habitat (POL)

Moderate

High

Organic Nutrient Export (OE)

Low

Carbon Sequestration (CS)

Low

Public Use & Recognition (PU)

Moderate

MITIGATION SITE

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Match?

High

Moderate

Yes

High

Moderate

Yes

Moderate

High

Moderate

Yes

Low

Yes

Low

Yes

Low

Moderate

Low

Yes

Low

Moderate

Yes

Moderate

Yes

Low

Moderate

Yes

High

Yes

High

Yes

Low

Yes

Moderate

Yes

Moderate

Yes

8-16

• Factor 2: Function temporal loss

Temporal loss is a factor to compensate for the time required for a mitigation site

to fully replace functions that are lost at the impact site. Two major causes

underlying temporal losses during the mitigation process have been identified: (1)

the time lag associated with replacement of the vegetation community and (2) the

time lag for development of hydric soil structure and characteristics at wetland

mitigation sites.

A vegetation adjustment factor is applied according to the vegetation community

that will be lost at the impact site, reflecting different development timescales

required to replace different plant communities, as classified in Figure 8-4. A soil

adjustment factor is applied if the soils at the wetland mitigation site will require

an extended period of time to develop the structure, composition, and

characteristics of hydric soils. Temporal loss adjustment factors are based on a

general estimation of years-to-functionality multiplied by 3% per year. This

percentage is a discount rate that has been widely-used in natural resource

accounting methods (see text box on the next page).

The applicant must select only the first applicable adjustment factor from the list

below (which will represent the longest-lasting cause of function temporal loss):

o Impact site is dominated by an evergreen forested wetland community

o Impact site is dominated by a deciduous forested wetland community

o Impact site is dominated by emergent or shrub vegetation (excluding

cropped wetlands

)

o CM site is predominantly (a) upland soils which were not historically hydric

or (b) hydric soils that will be disturbed during mitigation construction;

o None of the above.

The soil adjustment will not apply to (1) mitigation sites where native hydric soils

are buried under fill when that fill will be removed without disturbing the native

soils, or (2) when mitigation credits are being purchased. For the latter, the soil

adjustment factor will be applied to the number of credits awarded to a mitigation

bank or ILF project.

The vegetation community adjustments will not typically apply if the CM method

is preservation, if the impact site is dominated by cropped wetlands, or if living

vegetation (except pioneer species) covers less than 30% of the substrate at the

impact site.

Vegetation communities, with the exception of cropped wetland, will be determined using the terms and

definitions in Classification of Wetlands and Deepwater Habitats of the United States by Cowardin et al. (FWS/OBS

79/31, December 1979).

Cropped wetland is converted wetland that is regularly plowed, seeded, and harvested in order to produce a crop

for market. Pasture, including lands determined by the Natural Resources Conservation Service to be “farmed

wetland pasture,” is not cropped wetland. Converted wetlands are defined in OAR 141-085-0510(22).

8-17

Accounting for temporal loss of function in wetland mitigation

What is temporal loss?

Temporal loss is the time lag between the loss of aquatic resource functions caused by the

permitted impacts and the replacement of aquatic resource functions at the compensatory

mitigation site.

How can temporal losses be accounted for?

The required mitigation amount may be higher to compensate for situations in which temporal

losses in function are occurring. This concept is incorporated in many resource accounting

protocols, several of which require a standard 3% discount rate per year of functional loss. This

means that for every year it takes to replace a specific amount of service, an amount of habitat

capable of producing an additional 3% of the lost service must be provided. The concept is

derived from the economic theory of discounting, which assumes that there is greater value in

services that are provided in present time than on services that are put off to the future.

Temporal losses from vegetation community development

Loss of established vegetation communities at impact sites results in periods of function loss

due to the delay time for vegetation community development at mitigation sites. The adjustment

factors in this protocol consider the estimated time required for the vegetation at the mitigation

site to fully replicate the size and age class of the vegetation lost at the impact site. An

evergreen forested community is assumed to have a development time of 30+ years, while a

deciduous forested community develops in ~20 years, and an emergent/shrub community

develops in ~7 years. Cropped wetlands are excluded from the emergent vegetation category

given that the level of function commensurate with what is provided by cropped wetland is

assumed to develop in less than 2 years. The temporal loss of functions related to vegetation is

applied based on the impacted site since it represents an impact on the wetland resource and is

not related to the type of mitigation being proposed.

Temporal losses from soil development

Development of hydric soils (when they are not already present) and removal or disturbance of

hydric soils (O and A horizons) results in extended periods of function loss due to the delay time

to ecological maturity. The timeline for soil development can be lengthy, with some studies

showing that while biomass and litter accumulation in created wetlands can reach near-natural

levels after several decades, soil organic matter takes much longer to match natural levels, if it

ever does. Various studies have demonstrated that biogeochemical functioning in restored

wetlands, driven primarily by the soil structure, carbon content, and microbial activity, is often

significantly lower than in reference wetlands even decades after restoration efforts occur.

Given that it is difficult to assign a general estimate of “years to functionality,” this protocol

applies a conservative adjustment (representing a timeline of a couple decades) to represent

the development time for basic hydric soil structure and characteristics. The temporal loss of

functions related to soil development are applied based on construction plans at the mitigation

site since it is related to the type of mitigation proposed.

8-18

Do shrubs and trees

together provide areal

coverage

d0%?

Figure 8-4:

!Function Temporalloss: Classification ofvegetation community at

the impact site

YES

Do shrubs provide

areal coverage

30%?

YES

Cropped wetland is converted wetland

ha is regularly plowed, seeded, and

harvest,ed in order to produoe a crop for

market. Pasture, including lands

determined by the Na ural Re ources and

Conservation Service to be,"farmed

we,tland pastur,e,,'' is no,tcropped wetland.

OAR 141-085-06901

Emergent vegetation

provides areal

coverage

Do trees provide areal

ooverage

30%?

Is the,re

gr,e,at,er

areaI

cover b,ydeciduous

tree,species?

Is ther,e gr,e,ater areaI

cover by eve,rgreen

tr,ee,species?

There is equal areal

cover by evergreen

and deciduous ree

species

8-19

Section 3: Decrease Factors

Any adjustment applied in this step would result in a decrease in mitigation

requirements down to, but never below, the minimum acreage requirements established

in the first section. That is, a decrease factor can counteract any increase factors but

will never cause the amount of mitigation required (per acre of impact) to be less than

the established minimum acreage requirements. There are two factors that may lead to

a decrease in mitigation requirements.

• Factor 1: High level of function replacement

If the CM site exceeds at least 80% of the specific functions being lost at the

impact site, a decrease factor of 20% will be applied to counteract any increase

factors. For ORWAP, >13 functions must be exceeded beyond an overlapping

rating break proximity. The rating break proximity represents repeatability error,

and to qualify for this decrease factor the mitigation site rating must be a higher

rating and outside of the repeatability error of impact. For example, when a score

is within the repeatability error between “Lower” and “Moderate” scores, the

rating break proximity is automatically labeled as “LM” on the ORWAP Scores

sheet, and a “Moderate” score at the mitigation site would not qualify as

exceeding (see Figure 8-5).

• Factor 2: Mitigation site protection & stewardship

Legally binding site protection instruments and assurances for long-term

management are required for wetland mitigation sites to ensure that the land and

aquatic resources are protected in perpetuity. Similar instruments may be

required by the Department for protection of non-wetland mitigation sites. The

agencies have outlined the minimum site protection requirements for both

permittee-responsible mitigation and mitigation banks/ILF projects. There is no

adjustment applied when minimum requirements are met, but an applicant can

obtain a reduction in their total mitigation requirements if they provide a level of

stewardship beyond what is minimally required, either at a permitee-responsible

mitigation site or by purchasing credits from a bank/ILF site that has enhanced

stewardship. This adjustment is designed to incentivize strengthened site

protection and long-term maintenance financial arrangements to help ensure the

long-term sustainability of CM sites. The applicant must indicate whether the

protections in place are:

o Minimum requirements. Administrative rule (OAR 141-085-0695)

requires that protection instruments prohibit any uses of the CM site that

would violate conditions of the removal-fill authorization or otherwise

adversely affect functions and values provided by the CM site. Minimum

administrative requirements are public ownership with an approved

management plan, or a deed restriction. Sites that are not in public

ownership must also include a right of entry or an access easement,

conveyed to the regulatory agencies. Long-term maintenance plans must

8-20

describe how the applicant anticipates providing for ongoing maintenance

of the CM site to ensure its sustainability.

OR,

o Enhanced stewardship. There are a variety of legal instruments and

mechanisms that can provide protections beyond the minimum

requirements, including conservation easements or land ownership by a

qualified land conservation organization. Strengthened assurances for

management and maintenance may include an approved long-term

management plan with a financing mechanism, such as a non-wasting

endowment or trust. Banks/ILFs typically provide this higher level of

stewardship.

Section 4: Mitigation Requirement Calculations

Figure 8-6 provides step-by-step instructions for calculating mitigation requirements

based on the answers provided previously. The process is designed to ensure that the

final per-acre mitigation requirements never drop below the per-acre minimum.

Section 5: Buffer Calculations

A buffer is the area immediately adjacent to or surrounding a water of this state that

may be necessary to protect against conflicting adjacent land use and to support

ecological functions (OAR 141-085-0510(11)). This section of the accounting worksheet

is only used if buffers will be required as part of the mitigation plan. Management and

long-term protection of the buffer will typically be required. Buffer credits will be

determined case-by-case by the Department and credit will only be given for actions

taken above and beyond other legal requirements (e.g., Oregon Forest Practices Act,

local ordinances, Oregon Department of Agriculture). The credits awarded per acre of

buffer will generally be lower than for restoration, creation, or enhancement of waters of

this state.

8-21

Figure 8-5. Example of high level of function replacement (when mitigation site exceeds 80% of

functions lost at impact site).

IMPACT SITE

PROPOSED

MITIGATION SITE

Specific Functions:

Function

Rating

Break

Function

Rating

Break

Mitigation site

exceeds

function rating

at impact site?

Water Storage & Delay (WS) Lower LM Moderate

Sediment Retention &

Stabilization (SR)

Lower

Moderate

Phosphorus Retention (PR) Moderate

Higher

Nitrate Removal & Retention

(NR)

Moderate LM Higher

Anadromous Fish Habitat (FA) Lower

Moderate

Resident Fish Habitat (FR) Lower

Moderate

Amphibian & Reptile Habitat

(AM)

Moderate

Lower

Waterbird Nesting Habitat

(WBN)

Moderate

Higher

Waterbird Feeding Habitat

(WBF)

Moderate

Higher

Aquatic Invertebrate Habitat

(INV)

Moderate

Higher

Songbird, Raptor, Mammal

Habitat (SBM)

Moderate

Higher

Water Cooling (WC)

Lower

Moderate

Native Plant Diversity (PD)

Lower

Moderate

Pollinator Habitat (POL)

Higher

Organic Nutrient Export (OE)

Moderate

Higher

Carbon Sequestration (CS)

Lower

Moderate

Public Use & Recognition (PU)

Lower

Moderate

8-22

Figure 8-6. Routine Compensatory Mitigation Accounting Worksheet

A) MINIMUM ACREAGE REQUIREMENT (per one acre of impact)

Mitigation method

Restoration/creation/

credit purchase/waterways

1.0

Enhancement

3.0

Preservation *case-by-case

10.0

B) INCREASE FACTORS (as percentage of minimum)

Specific function

and value

replacement

Number of matched specific wetland functions in ORWAP (requiring match of BOTH function and

value):

N/A (watershed

priority/BPJ used)

0.0

≥ 13

0.0

11-12

0.1

9-10

0.2

7-8

0.3

5-6

0.4

< 5

0.5

Function

temporal loss

Select the first applicable adjustment factor:

NOTE: factor with an asterisk (*) is not applicable to credit purchases

Impact site is dominated by evergreen forested community 1.0

Impact site is dominated by deciduous forested community 0.5

Wetland mitigation site has (a) upland soils that were not historically hydric or

(b) hydric soils that will be disturbed*

0.5

Impact site is dominated by emergent or shrub vegetation (excluding cropped

wetlands)

0.2

None of the above 0.0

C) DECREASE FACTORS (as percentage of minimum)

High level of function replacement >13 ORWAP functions exceeded

0.2

Not applicable

0.0

Mitigation site protection & stewardship

Minimum requirements

0.0

Enhanced stewardship

0.2

D) MITIGATION CALCULATIONS

Minimum acreage requirement

Mitigation requirement with no

← buffer requirement

Sum of increase factors (Section B)

Sum of decrease factors (Section C)

Line B - Line C (if < 0, enter 0)

Line A × (1+ Line D)

Total acreage impacted

Line E × Line F

E) BUFFER CREDITS (if applicable)

Acres of buffer

Adjusted mitigation requirements

← with required buffer

Buffer credit ratio (case-by-case)

Buffer credits

Line G - Line J

8-23

Special Considerations

Aquatic Resources of Special Concern

The Department identifies some waters of this state as Aquatic Resources of Special

Concern (ARSCs). ARSCs provide functions, values and habitats that are limited in

quantity because they are naturally rare or have been disproportionately lost due to

historic impacts. ARSCs include alkali wetlands and lakes, bogs, cold water habitat,

fens, 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, and others as determined

by the Department. Appendix F provides a complete description of these ARSCs.

Impacts to ARSCs do not qualify for many of the exceptions in rule that promote permit

application streamlining. CM for impacts to an ARSC will follow a slightly different

eligibility protocol (described below). The purpose of applying specific regulations to

ARSCs is to ensure that rare habitat types and the functions and values they provide

are replaced in-kind on a landscape scale.

• Mitigation site eligibility: The CM must involve the ARSC type being impacted.

Replacement by class group-level function/value replacement is not explicitly

required as the requirement to match resource type is already more stringent

than what is routinely required. The exception for watershed priorities is not an

option where an impact site is considered an ARSC.

• Mitigation accounting: All the routine accounting worksheet sections will apply.

Minor Wetland Impacts

Impacts that are less than0.20 acres to non-tidal wetlands may be able to use a

streamlined eligibility and accounting process. The streamlined process is not

applicable to impacts to ARSCs, regardless of size, as those impacts are subject to the

protocols outlined in above. Applicants may choose to use either ORWAP or best

professional judgement to provide an assessment of functions and values at the impact

site. A function assessment is not required for the compensatory mitigation site when

mitigation is proposed to be fulfilled by credit purchase. When using best professional

judgement, conclusions must include a rating (i.e., low, moderate, or higher) for each of

the group-level functions and values, and a written discussion of the basis of that rating.

Group-level functions and values assessed must include, but are not limited to, those

outlined in ORWAP or SFAM, as appropriate.

CM for minor wetland impacts will follow slightly different eligibility and accounting

protocols (described below). The purpose of maintaining a streamlined eligibility and

accounting process for minor impacts is to: (1) minimize time and expense for

applicants, (2) encourage applicants to minimize their impacts, (3) encourage applicants

8-24

to pursue credit purchases over permittee-responsible mitigation; and, (4) minimize

regulatory staff time required to review applications.

• Mitigation site eligibility:

o For credit purchases: Applicants must demonstrate eligibility by either

meeting an abbreviated set of eligibility criteria that requires HGM class

and subclass match, and Cowardin system and class match (but does not

require group-level function and value matching), or by meeting exception

criteria for watershed priorities.

o For permittee-responsible mitigation: Applicants must demonstrate

eligibility of the proposed CM site using either the standard eligibility

criteria (HGM and Cowardin match and group function/value match) or by

meeting the exception criteria for watershed priorities.

• Mitigation accounting:

o For credit purchases: Applicants will purchase credits at a rate of 1 credit

per 1 acre of impact. There are no further adjustments applied to this

acreage requirement. Minimum acreage requirements are factored into

the number of credits awarded to the bank/ILF project.

o For permittee-responsible mitigation: increase and decrease factors

based on the specific function/value replacement do not apply. All other

adjustments of the routine accounting worksheet sections may apply.

Buffers

A buffer is the upland or wetland area immediately adjacent to or surrounding a wetland

or other water that is set aside to protect against conflicting adjacent land use and to

support ecological functions. This section deals only with buffers for compensatory

mitigation sites. Buffers may be proposed by the applicant or required by DSL to

maximize the principal objectives.

The presence of conflicts and stressors near the CM project

should be part of the siting considerations process.

However, outstanding issues with surrounding land uses

and replacement or sustainability of functions and values of

the CM project may be addressed using buffers. Waters of

this state will almost always benefit from a natural buffer at

the upland or project boundary, and DSL encourages all CM

sites to have a buffer dominated by native vegetation.

To determine if a buffer is appropriate, the existing and

potential future land uses surrounding the proposed

mitigation site should be assessed. Future land use may be based on zoning, known

development plans, existing land uses in the area, and topography. Activities associated

with these land uses, and the likelihood they could cause stress or harm to the CM’s

ecological functions, should be considered. Particular attention should focus on

Buffers approved as part of

a permit authorization

become part of the CM site

and are subject to the same

rules governing these areas,

including performance

standards, long term

protection, financial surety for

the buffer areas, and the

removal-fill volume threshold

of zero cubic yards.

8-25

potential stressors to highly valued services at the site, as determined by a functions

and values assessment (e.g. water storage, water quality, wildlife habitat support).

Table 8-1 provides examples of conflicting land uses or ecological concerns as well as

the objectives and functions that buffers could serve in those situations.

DSL does not have standard buffer requirements because each CM project is unique.

Instead, the permit applicant (or consultant) should refer to technical documents that

discuss design elements for specific buffer objectives and include the design

specifications and reasoning in the CM section of the permit application. One good

example of a buffer-related technical document is “Conservation Buffers: Design

Guidelines for Buffers, Corridors, and Greenways”.

Applicants may work with the DSL Aquatic Resource Coordinator for their county to

determine the best buffer design for the project. Other federal, state and local agencies

could be consulted to determine appropriate and effective buffer designs and goals.

Local ordinances should be reviewed when designing the buffer. For example, some

cities require dry vegetation to be mowed to reduce fire hazards, thus requiring a

mowed buffer.

Table 8-1. Examples of Buffer Needs, Objectives and Targeted Functions

Current or Potential

Conflicting Land Use

Buffer Objectives

Buffer Functions

Surface runoff into the

wetland that delivers

sediment, nutrients, or other

pollutants

Reduce runoff of sediment,

nutrients, and other potential

pollutants

Slow water runoff and

enhance infiltration

Trap pollutants

Proximity to agricultural

operations may expose the

wetland to spray drift

Protect from wind

Control air pollutants

Reduce wind energy

Filter air pollutants

Urban sites prone to

transient camps, or dumping

of yard waste, pet waste and

litter

Sites adjacent to roads that

may get hazmat spills or off-

road vehicle trespass

Reduce pollutants

Create a safe environment

Promote nature-based

recreation

Trap pollutants in surface

runoff or subsurface flow

Separate human activities

Reduce hazards

Protect natural areas

Protect soil, plant resources

Human or domestic animal

activity and noise near

wetland may reduce native

animal use

Control noise levels

Enhance terrestrial habitat

Enhance aquatic habitat

Screen undesirable noise

Separate human activities

Protect natural areas

Floodplain sites may get

continual input of weed

species and erosive action;

other wetlands may get

weed invasion from adjacent

uplands

Protect from flood waters

Enhance terrestrial and aquatic

habitat

Reduce flood water levels

and erosion

Reduce bank erosion

Protect soil, plant resources

8-26

Current or Potential

Conflicting Land Use

Buffer Objectives

Buffer Functions

Unmarked mitigation site

boundaries may have

trespass from overzealous

landscapers, gardeners,

grazers or other agricultural

users

Enhance terrestrial and aquatic

habitat

Enhance visual quality

Create a safe environment

Protect natural areas

Reduce hazards

Separate human activities

Enhance visual interest

The site is located upstream

of a temperature-limited

stream

Enhance aquatic habitat

Shade stream or wetland to

maintain temperature

A natural corridor would

connect the water resource

to a nearby habitat area

Enhance terrestrial and aquatic

habitat

Restore connectivity

Increase natural area

Provide a corridor for

movement

Sediment and phosphorus

removal is highly valued at

the site, but water is

delivered quickly to the site

from the contributing area

Reduce runoff of sediment,

nutrients, and other potential

pollutants

Slow water runoff and

enhance infiltration

Trap pollutants in surface

runoff

Land directly upslope of the

wetland/upland boundary is

not in natural cover, and

aquatic or terrestrial support

is valuable at the site

Enhance terrestrial and aquatic

habitat

Increase biological control of

pests

Restore connectivity

Increase habitat area

Enhance habitat for

predators of pests

Generating Credits at a New Mitigation Bank or In-Lieu Fee Site

The number of mitigation bank (Bank) and in-lieu (ILF) site credits that will be generated

from a project must be known in advance of sales to offset specific impacts. Bank and

ILF sponsors rely on this information to base business decisions upon and for some

perspective for their credit pricing. DSL and the Corps of Engineers need credit

information for Bank and ILF project approval, credit ledger management, and to

efficiently implement our regulatory programs. Applicants benefit from publicly available

credit information because this information adds consistency on credit tracking and

availability during the application and permitting processes. For each Bank and ILF

project, the agencies approve an estimated number of credits in an Instrument. This

number of potential credits is assessed as the site achieves performance standards.

Credit adjustments may be needed for banks or ILF sites depending on site

performance measures.

Credit calculations at new Banks and ILF site will be based on: 1) the mitigation method

being used at the site, and 2) for wetlands, whether the site is starting with upland soils,

or with hydric soil that will be disturbed during construction. Buffers may also generate

credits. Bank sponsors can use the crediting worksheet (Figure 8-7) to estimate the total

number of credits their proposed bank will generate. More than one worksheet may be

used when a variety of mitigation methods and credit decrease factors will apply at the

Bank or ILF site.

8-27

Figure 8-7. Crediting Worksheet for Mitigation Banks & In-Lieu Fee Projects

A) MINIMUM ACREAGE REQUIREMENT (per one acre of impact)

Mitigation

method

Pg. 7

Restoration/creation/waterways

Enhancement

3.0

Preservation *case-by-case

10.0

B) CREDIT DECREASE FACTORS (as percentage of minimum)

Function

temporal loss

Pg. 9-10

Area has (a) upland soils that were not historically hydric or (b) hydric soils

that will be disturbed,

0.5

Area has hydric soils that will not be disturbed or the project does not

include wetlands

0.0

C) MITIGATION CREDIT CALCULATIONS

Minimum acreage requirement

Credit decrease factor

Line A × (1+ Line B)

Applicable site acreage

Line D ÷ Line C

← Potential credits

D) BUFFER CREDITS (if applicable) Pg. 12

Acres of buffer

Credit ratio (case-by-case)

Buffer credit

Line E + Line H

← Adjusted mitigation credits

8-28

Mitigation Scenarios

Four example scenarios have been developed to illustrate the process for determining

mitigation site eligibility and mitigation credit accounting. The four scenarios are:

• Scenario 1: Permittee Responsible Wetland Mitigation

• Scenario 2: Mitigation Bank Crediting

• Scenario 3: Credit Purchase for a Wetland Impact

• Scenario 4: Stream Mitigation

Scenario 1: Permittee Responsible Wetland Mitigation

Proposed impact: Fill 0.86 acres of Flats (HGM), palustrine emergent (Cowardin),

wetlands (see photo below).

Proposed compensatory mitigation: The site provides opportunity to enhance,

restore and create wetlands. In this scenario, the applicant proposes enhancement of

up to 5.52 acres of the existing palustrine emergent (Cowardin), Flats (HGM)

wetlands for mitigation. The site is publicly owned, and a management plan will be

developed. Funding for site management will come from the city budget. DSL

requires a 0.5-acre buffer adjacent the roads that will be maintained as a public trail,

which will be credited at 20:1. (Air photo below shows the mitigation site ~10 years

after construction)

8-29

Step 1: Determine Eligibility

HGM class and subclass match (Flats)

Cowardin system and class match (paluestrine emergent)

Group-level functions and values match:

IMPACT SITE

PROPOSED MITIGATION SITE

GROUPS

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Match?

Hydrologic

Function

(WS)

Moderate LM Higher

Moderate

Higher

Water

Quality

Support

(SR, PR,

or NR)

Moderate

Higher

Moderate

Higher

Fish

Habitat

(FA or FR)

Lower

Aquatic

Habitat

(AM, WBF,

or WBN)

Higher

Moderate

Higher

Moderate

Ecosystem

Support

(WC, INV,

PD, POL,

SBM, or

OE)

Higher

Moderate

Higher

Note that Ecosystem Support function is replaced because the function rating at the

impact site could be considered either Higher or Moderate based on the rating break

proximity (MH).

8-30

Step 2. Accounting

INSTRUCTIONS: This accounting worksheet is used to estimate a permittee's wetland mitigation requirements, specific to a particular impact

and proposed mitigation site. The minimum requirements will be determined on a case-by-case basis by the agency but should not go below a

1:1 minimum ratio. Requirements are based on (1) the mitigation method, (2) the function/value replacement achieved, (3) function temporal

loss factors, and (4) stewardship and site protection plans. Enter data in red boxes only. Yellow boxes will populate automatically. A separate

column must be used for each mitigation method used (e.g., if a mitigation site includes both restoration and enhancement, the mitigation

method for those distinct areas must be calculated in separate columns). A separate column may also be used to allow different function

temporal loss factors to be applied to different acreages, even if the mitigation method being used on that acreage is the same.

Factor

Method 1

Method 2

Method 3

Notes

Mitigation

method

What method(s) of mitigation is proposed?

▪

Select an option from drop-down list.

Enhancement

If purchasing credits, ILF or

PIL, select "credit purchase."

Minimum requirements for

preservation and non-

wetland waters are case-by-

case, as determined by the

Department.

MINIMUM MITIGATION REQUIREMENT

(acres of mitigation required per acre of impact)

3.00

Note: Adjustments do not apply to non-tidal wetland impacts ≤0.2 acres purchasing credits as mitigation; select "Not applicable" for each factor.

Specific

function and

value

replacement

(increase factor)

How many specific functions and values from the

impact site are replaced at the mitigation site?

▪

Compare ORWAP or SFAM scores between the

impact site and the mitigation site (predicted

scores) to determine this. Select an option from

drop-down list.

≥13 matches

Select "Not applicable" if the

mitigation site is

approved/seeking approval

as an exception to in-kind

replacement under a

watershed priority approach,

or best professional

judgement was used to

assess functions and values.

Function

temporal loss

(increase factor)

Which factor, if any, will cause the greatest

temporal loss of function?

Emergent/shrub

impacted

Soil adjustment factors are

not applicable to credit

purchases or removal of

8-31

▪

Select first applicable option from drop-down list.

20%

historic fill. Vegetation and

soil adjustments may not

apply when the mitigation

method is preservation.

High level of

function

replacement

(decrease

factor)

Does the CM site exceed at least 80% of the specific

functions being lost at the impact site?

▪

Compare ORWAP function ratings between the

impact site and the mitigation site (predicted

scores) to determine this. Select an option from

drop-down list.

Not applicable

“Exceed” means replaced

beyond an overlapping

rating break proximity.

- 0%

Mitigation site

protection &

stewardship

(decrease

factor)

What level of site protection and stewardship is

proposed for the mitigation site?

▪

Select an option from the drop-down list.

Minimum

requirements

Mitigation banks and ILFs

typically have enhanced

stewardship.

- 0%

Total adjustment (percent increase)

+ 20%

ADJUSTED MITIGATION REQUIREMENT

(acres of mitigation required per acre of impact)

3.6

Method 1

Method 2

Method 3

Notes

Acreage of impact

0.86

Insert the area of

unavoidable permanent

impact

8-32

MITIGATION ACREAGE REQUIRED

(adjusted mitigation requirement * impacted

acreage)

3.10

TOTAL MITIGATION REQUIRED WITHOUT BUFFERS

3.10

This is the mitigation required if a buffer is not required by DSL

This section is only used if DSL requires a buffer at the compensatory mitigation project. This section does not apply to credit purchases.

Factor

Method 1

Method 2

Method 3

Notes

Credit for DSL

Required

Buffers

Buffer acreage

0.5

Use multiple methods only if

more than one ratio will be

applied to the buffer.

Buffer credit ratio

DSL will determine the credit

ratio for required buffers.

Enter the acres of buffer

required per credit (e.g. for

10:1, enter 10).

Buffer Credit

0.05

0.00

Total Buffer Credit

0.05

TOTAL MITIGATION REQUIRED WITH BUFFER

CREDITS APPLIED

3.05

This is the mitigation required if buffers are required by DSL

8-33

IMPACT SITE

PROPOSED MITIGATION SITE

Specific

Functions or

Values:

Function

Rating

Break

Values

Rating

Break

Proximity

Function

Rating

Break

Values

Rating

Break

Match?

Water Storage

Moderate LM Higher

Moderate

Higher

& Delay (WS)

Sediment

Retention &

Stabilization

Lower Higher Moderate Higher

(SR)

Phosphorus

Retention

Moderate

(PR)

Nitrate

Removal &

Retention

Moderate LM Higher Moderate Higher

(NR)

Anadromous

Fish Habitat

Lower

(FA)

Resident Fish

Lower

Habitat (FR)

Amphibian &

Reptile

Moderate

Lower

Habitat (AM)

Waterbird

Nesting

Higher

Moderate

Higher

Moderate

Habitat (WBN)

Waterbird

Feeding

Moderate

Higher

Moderate

Habitat (WBF)

Aquatic

Invertebrate

Lower

Moderate

Habitat (INV)

Songbird,

Raptor,

Mammal

Lower Moderate Moderate LM Moderate

Habitat (SBM)

Water Cooling

Lower

Higher

Moderate

Higher

(WC)

Native Plant

Moderate

Lower LM Moderate MH Moderate MH

Diversity (PD)

Pollinator

Higher MH Moderate

Moderate

Higher

Habitat (POL)

Organic

Nutrient

Moderate

Export (OE)

Carbon

Sequestration

Lower

Moderate

(CS)

Public Use &

Recognition

Moderate

Public Use

Recognition

Lower

8-34

Scenario #2: Mitigation Bank Crediting

In this scenario the mitigation site is proposed as a mitigation bank. The site is 9.5

acres of wetland, plus 1.11 acres of upland buffer. The site provides opportunity to

enhance, restore and create wetlands. The mitigation plan primarily includes plugging

ditches and removing fill from berms, however 3.76 acres of upland soils will be

excavated to create wetlands. (Air photo shows the mitigation site ~10 years after

construction)

8-35

Credit Determination Form for Mitigation Banks or In-Lieu Fee Projects

INSTRUCTIONS: This accounting worksheet is used to estimate credits for a mitigation bank or in-lieu fee project. Final credits and

requirements will be determined by the agency. Credits are based on (1) the mitigation method, (2) function temporal loss factors, and (3)

buffers. Enter data in red boxes only. Yellow boxes will populate automatically. A separate column must be used for each mitigation method

used (e.g., if a mitigation site includes both restoration and enhancement, the mitigation method for those distinct areas must be calculated in

separate columns). A separate column may also be used to allow different function temporal loss factors to be applied to different acreages,

even if the mitigation method being used on that acreage is the same.

Factor

Method 1

Method 2

Method 3

Notes

Mitigation

method

What method(s) of mitigation is proposed?

▪

Select an option from drop-down list.

Enhancement

Restoration

Creation

Use multiple methods if

more than one ratio applies.

Credits for preservation are

case-by-case, as determined

by the Department and may

be adjusted.

3.00 1.00 1.00

Function

temporal loss

(increase

factor)

Which soil factor, if any, will cause temporal loss of

function?

▪

Select first applicable option from drop-down list.

None of the above

Upland soils at

wetland mitigation

site

Soil adjustment factors are

not generally applicable to

removal of historic fill, or

mitigation through

preservation.

50%

ADJUSTED MITIGATION RATIO

(acres per credit)

3.00

1.00

1.50

8-36

Applicable site acreage

1.84

0.22

2.51

0.61 0.22 1.67

POTENTIAL MITIGATION CREDITS WITHOUT

BUFFERS

2.51

This section is only used if DSL approves a buffer at the compensatory mitigation project

Credit for

Buffers

Buffer acreage

1.11

Use multiple methods if

more than one ratio applies

Buffer credit ratio

DSL will determine the

credit ratio for required

buffers. Enter the acres of

buffer required per credit

(e.g. for 10:1, enter 10)

Buffer Credit

0.11

0.00

POTENTIAL MITIGATION CREDITS WITH BUFFER

CREDITS

2.62

8-37

Scenario #3: Credit Purchase for a Wetland Impact

Proposed impact: Fill 0.86 acres of palustrine emergent (Cowardin), Flats (HGM)

wetlands.

Proposed compensatory mitigation: Purchase credits from the mitigation bank

approved in Scenario #2. The site is publicly owned but a conservation easement with a

funding endowment will be held by a qualified conservation organization. (Air photo

shows the mitigation site ~10 years after construction)

8-38

Step 1: Determine Eligibility

HGM class match

Cowardin class match

Function and value match:

IMPACT SITE

PROPOSED MITIGATION SITE

GROUPS

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Function

Rating

Break

Proximity

Values

Rating

Break

Proximity

Match?

Hydrologic

Function

(WS)

Moderate

Higher

Moderate

Higher

Water

Quality

Support

(SR, PR,

or NR)

Moderate

Higher

Moderate

Higher

Fish

Habitat

(FA or FR)

Lower

Aquatic

Habitat

(AM, WBF,

or WBN)

Higher

Moderate

Higher

Moderate

Ecosystem

Support

(WC, INV,

PD, POL,

SBM, or

OE)

Higher

Moderate

Higher

8-39

Step 2. Accounting

INSTRUCTIONS: This accounting worksheet is used to estimate a permittee's wetland mitigation requirements, specific to a particular impact

and proposed mitigation site. There are no minimum requirements defined for waterways. Final requirements will be determined by the agency.

Requirements are based on (1) the mitigation method, (2) the function/value replacement achieved, (3) function temporal loss factors, and (4)

stewardship and site protection plans. Enter data in red boxes only. Yellow boxes will populate automatically. A separate column must be used

for each mitigation method used (e.g. if a mitigation site includes both restoration and enhancement, the mitigation method for those distinct

areas must be calculated in separate columns). A separate column may also be used to allow different function temporal loss factors to be

applied to different acreages, even if the mitigation method being used on that acreage is the same.

Factor

Method 1

Method 2

Method 3

Notes

Mitigation method

What method(s) of mitigation is proposed?

▪

Select an option from drop-down list.

Credit purchase

If purchasing credits, ILF or PIL,

select "credit purchase." Minimum

requirements for preservation and

non-wetland waters are case-by-

case, as determined by the

Department.

MINIMUM MITIGATION REQUIREMENT

(acres of mitigation required per acre of impact)

1.00

Note: Adjustments do not apply to non-tidal wetland impacts ≤0.2 acres purchasing credits as mitigation; select "Not applicable" for each factor.

Specific function and

value replacement

(increase factor)

How many specific functions and values from the

impact site are replaced at the mitigation site?

▪

Compare ORWAP or SFAM scores between the

impact site and the mitigation site (predicted

scores) to determine this. Select an option from

drop-down list.

≥13 matches

Select "Not applicable" if the

mitigation site is approved/seeking

approval as an exception to in-kind

replacement under a watershed

priority approach, or best

professional judgement was used

to assess functions and values.

Function temporal

loss (increase factor)

Which factor, if any, will cause the greatest

temporal loss of function?

Emergent/shrub

impacted

Soil adjustment factors are not

applicable to credit purchases or

removal of historic fill. Vegetation

8-40

▪

Select first applicable option from drop-down

list.

20%

and soil adjustments may not apply

when the mitigation method is

preservation.

High level of

function

replacement

(decrease factor)

Does the CM site exceed at least 80% of the

specific functions being lost at the impact site?

▪

Compare ORWAP or SFAM function ratings

between the impact site and the mitigation site

(predicted scores) to determine this. Select an

option from drop-down list.

Not applicable

This decrease factor can

counteract any increase factors but

will not cause mitigation

requirements to be less than the

established minimum based on the

mitigation method. For ORWAP,

“exceed” means replaced beyond

and overlapping rating break

proximity.

Mitigation site

protection &

stewardship

(decrease factor)

What level of site protection and stewardship is

proposed for the mitigation site?

▪

Select an option from the drop-down list.

Enhanced

stewardship

This decrease factor can

counteract any increase factors but

will not cause mitigation

requirements to be less than the

established minimum based on the

mitigation method. Mitigation

banks and ILFs typically have

enhanced stewardship.

- 20%

Total adjustment (percent increase)

ADJUSTED MITIGATION REQUIREMENT

(acres of mitigation required per acre of impact)

1.00

Method 1

Method 2

Method 3

Notes

Acreage of impact

0.86

Insert the area of unavoidable

permanent impact

8-41

MITIGATION ACREAGE REQUIRED

(adjusted mitigation requirement * impacted

acreage)

0.86

TOTAL MITIGATION REQUIRED WITHOUT

BUFFERS

0.86

This is the mitigation required if a buffer is not required by DSL

8-42

IMPACT SITE

PROPOSED MITIGATION SITE

Specific

Functions or

Values:

Function

Rating

Break

Values

Rating

Break

Proximity

Function

Rating

Break

Values

Rating

Break

Match?

Water Storage

Moderate LM Higher

Moderate

Higher

& Delay (WS)

Sediment

Retention &

Stabilization

Lower Higher Moderate Higher

(SR)

Phosphorus

Moderate

Moderate LM Moderate

Moderate

Retention (PR)

Nitrate

Removal &

Moderate

Higher

Moderate

Higher

Retention (NR)

Anadromous

Fish Habitat

Lower

(FA)

Resident Fish

Lower

Habitat (FR)

Amphibian &

Reptile Habitat

Moderate

Lower

(AM)

Waterbird

Nesting Habitat

Higher

Moderate

Higher

Moderate

(WBN)

Waterbird

Feeding

Moderate

Higher

Moderate

Habitat (WBF)

Aquatic

Invertebrate

Lower

Moderate

Habitat (INV)

Songbird,

Raptor,

Mammal

Lower Moderate Moderate LM Moderate

Habitat (SBM)

Water Cooling

Lower

Higher

Moderate

Higher

(WC)

Native Plant

Moderate

Lower LM Moderate MH Moderate MH

Diversity (PD)

Pollinator

Higher MH Moderate

Moderate

Higher

Habitat (POL)

Organic

Nutrient Export

Moderate

(OE)

Carbon

Sequestration

Lower

Moderate

(CS)

PublicUse &

Recognition

Moderate

PublicUse &

Recognition

Lower

Number of matched specific functions

8-43

Scenario #4 Stream Mitigation

Proposed impact: Impact 0.23 acres of Gales Creek for a bridge project. This reach of

Gales Creek is a perennial stream and is classified as a large stream by Oregon

Department of Forestry (ODF). Gales Creek is designated as Essential Indigenous

Anadromous Salmonid Habitat (ESH).

Proposed compensatory mitigation: Add large wood to a 0.3-mile section of Gales

Creek ~1 mile upstream of the impact location. This reach of Gales Creek is perennial,

is classified as a large stream by ODF, and is designated ESH.

8-44

Step 1: Determine Eligibility

Flow permanence match (perennial)

Same stream size (Large)

Essential Indigenous Anadromous Salmonid Habitat (ESH) designation (Yes)

Function and value match:

Step 2: Accounting

There is no minimum mitigation amount determined for stream mitigation. DSL will

evaluate whether the proposed mitigation project compensates for the impact.

9-1

Chapter 9: Develop a Mitigation Plan

Chapter Overview

This chapter provides a section-by-section description of the content for a

compensatory mitigation plan and is drawn from the content requirements described in

administrative rule (OAR 141-085-00705).

• Section 1: CM Plan Overview: An executive summary of the CM plan

• Section 2: CM Site Ownership and Location Information

• Section 3: Description of How the CM Addresses the Principal Objectives: How

the chosen method of CM (mitigation bank, advance mitigation, payment-in-lieu,

or permittee responsible) best addresses the Principal Objectives as a whole.

• Section 4: CM Existing Site Conditions: An overview of what the site currently

looks like and what resources are available that support the site being used for

• Section 5: Functions and Values Assessment: Summary of Expected gains and

losses

• Section 6: CM Construction Maps and Drawings

• Section 7: Monitoring Plan: Proposed performance standards and monitoring

methods

• Section 8: Long-term Protection and Financial Security Instruments

• Other Requirements: For compensatory mitigation proposed on behalf of a

closely held corporation, limited partnership (LP), Limited Liability Company

(LLC), or trust

• CM for Linear Projects in Multiple Watersheds

• Special Considerations for Eelgrass Bed Mitigation

9-2

Introduction

A CM Plan is required for permittee-responsible CM and should have a level of detail

commensurate with the size and complexity of the proposed mitigation. A CM plan is

not required for proposed CM using approved bank credits, advance mitigation credits,

in-lieu fee program credits, or payment in-lieu, however the principal objectives must

still be addressed in the permit application for impacts greater than 0.2 acres.

Guidance is provided in Section 3 below.

The CM plan should usually develop in a specific sequence:

Goals

Objectives Performance Standards Monitoring Plan

There should be an increasingly detailed progression from the goals that state what is

aimed for, to more detailed objectives telling how goals will be accomplished, to

performance standards that provide specifics on how many, how much, or what types of

quantifiable items (e.g. 60% cover of native herbs each year of monitoring) will be

provided.

A suggested outline for CM Plans using permittee-responsible mitigation is outlined

below. For CM plans using preservation, see Appendix C.

Chapter 9: Develop a Mitigation Plan

CM Plan Outline

Section 1: CM Plan Overview

1.1

Ecological Goals and Objectives

1.2

Description of CM Concept

1.3

Summary of CWM Acreages by Mitigation Method and Wetland Class(es)

1.4

Summary of CNWM Acreage and Linear Feet of Channel by Mitigation Method and Type

1.5

Summary of Function & Value Gains and Losses

Section 2: CM Site Information

2.1

Site Owner Information

2.2

Physical Location Information

Section 3: Description of How the CM Addresses the Principal Objectives

3.1

Function and Value Replacement

3.1.1

Justification for Out-of-kind Mitigation (if applicable)

3.2

Local Replacement of Locally Important Functions and Values

3.3

Self-sustaining/Minimum Maintenance Needs

3.4

Siting Considerations

3.5

Minimize Temporal Loss

Section 4: CM Existing Site Conditions

4.1

Wetland Delineation or Determination Results

4.2

Existing HGM, Cowardin, and Stream Types On-site

9-3

4.3

Description of Existing and Proposed Hydrology

4.4

Existing Plant Communities

4.5

Site Constraints or Limitations

4.6

Factors Leading to Degraded Condition (enhancement proposals only)

4.7

Means for Reversal of Degradation (enhancement proposals only)

4.8

Documentation of Former Wetland Condition (restoration proposals only)

Section 5: Functions and Values Assessment

5.1

Summary of Change at the Impact Site

5.2

Summary of Change at the CM Site

5.3

Replacement Summary

Section 6: CM Construction Maps and Drawings

6.1

Site Plan/Grading Plan/Cross Sections

6.2

Planting List

6.3

Construction Schedule

Section 7: Monitoring Plan

7.1

Proposed Performance Standards

7.2

Monitoring Method(s)

7.3

Monitoring Schedule

7.4

Rationale for Plot and Photo-documentation Locations

Section 8: Long-Term Protection and Financial Security Instruments

8.1

Proposed Protection Instrument

8.2

Proposed Financial Security Instrument

8.3

Long-term Maintenance Plan

Other Requirements

Joint and Personal Guarantee (if required)

The following tables and figures list identifies the key tables and figures appropriate for most CM

plans. It is not intended to be an all-inclusive listing. Applicants should include any additional

tables/figures necessary to clearly and concisely present the elements of their CM proposal.

Tables:

Impact and Mitigation Acreages Summary Table

Functions a

nd Values Assessment Replacement Summary

“Coverpg” and “FinalScores” Sheets for Impact & Mitigation Sites (if using ORWAP)

Plant List by HGM & Cowardin Class

Figures:

CM Site Location Map

Wetland Delineation Map for CM Site

Site plan(s)

Cross-section Plan(s)

Water Control Structure Schematic(s)

Monitoring Plot/Transect Location Map

Appendices:

Functions and values assessment Data Forms, Maps, Aerial Photos (mitigation site)

Legal Agreement between Applicant and Landowner (if applicable)

Other appendices as necessary

9-4

Section 1: CM Plan Overview

Section 1 serves as an executive summary of the CM plan and should include:

•

The ecological goals and objectives

•

The general CM concept including how replacement is achieved

•

For CWM, the mitigation site acreage by method(s) of mitigation proposed, and

by proposed HGM and Cowardin classification for each method

•

For CNWM involving a channel, the mitigation site acreage, and linear feet of

channel by method(s) of mitigation proposed

•

A summary of the proposed losses and gains of functions and values

Tables 8-2 and 8-3 serve as examples of how gains and losses can be summarized.

For linear projects in multiple watersheds, there should be summary charts for each 4

field hydrologic unit showing attributes for each “special” wetland site individually, plus

the predominant wetland condition for remaining wetlands, and the corresponding

information for each mitigation site.

Table 8-2: Example Format for JPA Reporting of Functions and Values

Group Functions

and Values

Impact Site

CM Site

Attribute

Replaced?

Existing

Rating

Rating Break

Proximity

(ORWAP)

Predicted

Rating

Rating Break

Proximity

(ORWAP)

Attribute

Function

Value

Attribute

Function

Value

Attribute

Function

Value

Attribute

…

Function

Value

Table 8-3: Wetland Mitigation Summary Table for CM Plan

Impact Site

CM Site

Wetland

HGM

Cowardin

Acres

Mitigation

Method

Acres

HGM

Cowardin

Mitigation

Ratio*

Credits

Gained

DCNP

PEM

0.40

Flat

PEM

0.50

Create

0.60

DCNP

PEM

1.5:1

0.4

Restore

0.28

Flat

PEM

1.1:1

0.25

Enhance

1.13

Flat

PEM

4.5:1

0.25

Total

0.90

2.01

0.90

9-5

*The Mitigation Ratio will be calculated using the CM Eligibility and Accounting Worksheet. In this

example, the proposal is to mitigate for impacts to wetlands A and B at the impact site using wetlands C

and D at the CM site. The CM site may be at the same location as the impact, or off-site

Section 2: CM Site Ownership and Location Information

Include the name address and phone number of the CM landowner. If the applicant is

not the landowner, provide a copy of legal agreements that grant permission to conduct

the CM and the willingness of the landowner to provide long-term protection. Keep in

mind that the applicant will retain responsibility for the CM site until the monitoring

period is complete. Location information should include a legal description (township,

range, quarter and quarter-quarter section and tax lot(s), and the site location on a

USGS or similar map relative to the impacted site, longitude and latitude, physical

address, and road milepost.

Section 3: Description of How the CM Addresses the Principal

Objectives

Describe how the chosen method of CM (mitigation bank, advance mitigation, payment-

in-lieu, or permittee responsible) best addresses the Principal Objectives as a whole.

Principal Objectives:

•

Replace functions and values lost at the impact site. If the group-level functions

and values will not be replaced by the proposed CM, the application must provide

justification that an exception should be approved because the alternative meets

a watershed priority.

•

Provide local replacement for locally important functions/values where

appropriate

•

Enhance, restore, create, or preserve waters of this state that are self-sustaining

and minimize long-term maintenance needs

•

Ensure siting of CM in ecologically suitable locations considering: local

watershed needs and priorities; appropriate landscape position for the wetland

types, functions and values sought; connectivity to other habitats and protected

resources; and the absence of contaminants or conflicting adjacent land uses

that would compromise wetland functions

•

Minimize temporal loss

Projects involving 0.2 acres or less wetland impacts and proposing the purchase of

credits from a bank, in-lieu fee project, or advance mitigation site, or payment in-lieu are

not required to address the Principal Objectives. Any proposal for a project involving

tidal waters impacts must address the Principal Objectives.

9-6

Section 4: CM Existing Site Conditions

This section should provide an overview of what the site currently looks like and what

resources are available that support the site being used for CM. A delineation should be

performed at the CM site to document the acreage of existing wetlands. The delineation

may also document the presence and extent of hydric soils if wetland restoration is

proposed. The HGM and Cowardin class(es) and subclass(es) of any existing wetlands

present should be listed by acreage. If channels exist describe whether they are

intermittent or perennial, the stream size class (small, medium, or large) as defined by

Oregon Department of Forestry, and whether the channel is ESH. The approximate

location of all water features (e.g. wetlands, streams, lakes) on or within 500 feet of the

CM site should also be documented. The availability of water to support the CM project,

and the potential threats to the long-term success of the project are important

considerations.

When describing the plant community, describe the distribution of major plant

communities present at the CM site and in buffer and riparian areas, including the

abundance and distribution of non-native and invasive

species. If CM includes enhancement, describe why these

areas qualify as degraded and how the plan will reverse

and sustain the reversal of the causes of degradation.

Provide a general description of the existing and proposed

water source, duration and frequency of inundation or

saturation, and depth of surface water for wetlands on the

CM site. Include identification of any water rights

necessary to sustain the CM site. When a water right is

required, the applicant must provide documentation prior

to permit issuance that the water right has been secured.

Be sure to describe any known constraints or limitations of the site (e.g. buried lines,

easements, liens) and how these were addressed in the CM plan.

Section 5: Functions and Values Assessment

For the purposes of documentation in the joint permit application, Section 5 of the CM

Plan must include a summary table of the functions and values that will be lost by the

project and the predicted functions and values at the CM site based on the CM design

(see Table 8-4 for example format). Applicants should include all completed data forms,

maps, and aerial photos used to conduct the assessment as an Appendix to the CM

plan. Photographs of the assessment area, while helpful, are not required.

There is a misconception that

invasive weeds can somehow

be locked out of a site. In fact,

invasives pose a serious threat to

the sustainability of many

wetland functions. Consideration

of siting criteria, target plant

communities, and long-term

monitoring and maintenance is

important to manage invasives.

9-7

Table 8-4: “Replacement” Example Using Enhancement and ORWAP

Functions and Values

Impact Site

CM Site

Function

and

Value

Replaced

Existing

Rating

Break

Proximity

Existing

Rating

Predicted

Rating

Break

Proximity

GROUPS

Hydrologic

Function

Value

Water

Quality

Support. . .

Function

Value

Specific Functions

and Values

Water

Storage &

Delay

Function

Value

Sediment

Retention &

Stabilization

…

Function

Value

Generally, a change in the value rating for a given attribute should not be expected between the existing

state and the predicted state of the CM site since value is driven primarily by conditions offsite from the

CM (i.e., in the contributing area and downslope area). Therefore, the value score at the CM site is simply

compared to the value score at the impact site.

When using ORWAP, be sure to consult the appendix in the ORWAP users manual

titled “Guidance for Using the Oregon Wetland Rapid Assessment Protocol (ORWAP) in

the State and Federal Permit Programs” for assistance in interpreting and presenting

the assessment results in the CM Plan.

Section 6: CM Construction Maps and Drawings

This section should provide the proposed schedule for constructing the CM site.

Drawings and specifications should show:

•

Scaled site plans that show the property boundary and project boundary; t;

existing and proposed wetland and waterway boundaries, including which areas

will qualify for the minimum ratio types; the location and width of buffers; existing

and proposed contours; cross section locations; scale bar; north arrow;

construction access location(s); and staging areas

•

Scaled cross sections showing existing and proposed contours, wetland and

waterway boundaries, proposed water depths, and scale bar(s)

•

Schematic of any proposed water control structures or other constructed features

•

For CM sites with tidal waters, plan views and cross-sections that show relevant

tidal elevations relative to mean lower low water (MLLW) using the nearest local

9-8

tidal datum. The elevation of MLLW should be referenced to the North American

Vertical Datum 1988 (NAVD88).

•

A plant list for each wetland habitat type (forested, shrub-dominated,

herbaceous, and upland buffers) by species and wetland indicator status, with

spacing and density (mitigation areas only)

Section 7: Monitoring Plan

Proposed Performance Standards

Performance standards are used to demonstrate that the site goals and objectives are

being met and provide DSL and permittee a way to track site progress. Because

performance standards are tied to financial security release, there is incentive for the

permittee to assure that the agreed-upon actions outlined in the CM plan are actually

taken, and they also provide the permittee with some assured times where they can

expect financial security release to occur, provided that the standards are being met.

Performance standards should meet the following goals:

•

Address the proposed ecological goals and objectives specific to the CM project

•

Be objective and measurable in a practicable and repeatable manner, per the

methods detailed in the monitoring plan

•

Provide a timeline for achievement of each performance standard, which may be

tied to financial security release or credit release schedules

•

Performance standards should address achievement of:

o Wetland acreage requirements

o Hydrology that is within design parameters and similar to natural systems of

the same wetland HGM type

o Wetland vegetation that is dominated by wetland plants

o Vegetation diversity

o Dominance by native species

o Control of invasive species

o Upland buffers adequate to protect the CM project from adjacent land uses

Routine Performance Standards

DSL has developed “routine” performance standards for CWM that may be used across

a wide variety of wetland types (Table 8-5). The performance standards represent the

best professional judgment of DSL staff of the vegetative conditions that should be

present at a site before it is released from further regulatory oversight. Each

performance standard should be met annually for a minimum of five years, unless

stated otherwise. Generally, DSL will use these performance standards for all CM.

9-9

Table 8-5. Routine Performance Standards for Area and Vegetative Monitoring

Area of Wetland Achieved (all permits)

The CM site will have a minimum of x acres of {HGM or Cowardin class} wetland by year 5,

as determined by a delineation during spring of a year when precipitation has been near

normal.

Herbaceous Wetlands

1. The cover of native herbaceous species is at least 60%.

2. The cover of invasive species is no more than 10%. A plant species should automatically

be labeled as invasive if it appears on the current Oregon Department of Agriculture noxious

weed list, plus known problem species including Phalaris arundinacea, Mentha pulegium,

Holcus lanatus, Anthoxanthum odoratum, and the last crop plant if it is non-native. Non-native

plants should be labeled as such if they are listed as non-native on the USDA Plants

Database. Beginning in Year 2 of monitoring, DSL will consider a non-native plant species

invasive if it comprises more than 15% cover in 10% or more of the sample plots in any

habitat class and increases in cover or frequency from the previous monitoring period.

Bare substrate represents no more than 20% cover.

4. By Year 3 and thereafter, there are at least 6 different native species. To qualify, a species

must have at least 5% average cover in the habitat class and occur in at least 10% of the

plots sampled.

5. Prevalence Index is <3.0.

Shrub-dominated and Forested Wetlands

1. The cover of native herbaceous species is at least 60%.

2. The cover of invasive species is no more than 10%. A plant species should automatically

be labeled as invasive if it appears on the current Oregon Department of Agriculture noxious

weed list, plus known problem species including Phalaris arundinacea, Mentha pulegium,

Holcus lanatus, Anthoxanthum odoratum, and the last crop plant if it is non-native. Non-native

plants should be labeled as such if they are listed as non-native on the USDA Plants

Database. Beginning in Year 2 of monitoring, DSL will consider a non-native plant species

invasive if it comprises more than 15% cover in 10% or more of the sample plots in any

habitat class and increases in cover or frequency from the previous monitoring period. Plants

that meet this definition will be considered invasive for all successive years of monitoring.

After the site has matured to the stage when desirable canopy species reach 50% cover, the

cover of invasive understory species may increase but may not exceed 30%.

Bare substrate represents no more than 20% cover.

4. By Year 3 and thereafter, there are at least 6 different native species. To qualify, a species

must have at least 5% average cover in the habitat class and occur in at least 10% of the

plots sampled

5. Prevalence Index total for all strata is <3.0

6. The density of woody vegetation is at least 1,600 native plants (shrubs) and/or stems

(trees) per acre, or the cover of native woody vegetation on the site is at least 50%. Native

9-10

species volunteering on the site may be included, dead plants do not count, and the standard

must be achieved for 2 years without irrigation.

Upland buffers

1. The cover of native species is at least 60%.

2. The cover of invasive species is no more than 10%. plant species should automatically be

labeled as invasive if it appears on the current Oregon Department of Agriculture noxious

weed list, plus known problem species including Phalaris arundinacea, Mentha pulegium,

Holcus lanatus, Anthoxanthum odoratum, and the last crop plant if it is non-native. Non-native

plants should be labeled as such if they are listed as non-native on the USDA Plants

Database. Beginning in Year 2 of monitoring, DSL will consider a non-native plant species

invasive if it comprises more than 15% cover in 10% or more of the sample plots in any

habitat class and increases in cover or frequency from the previous monitoring period. Plants

that meet this definition should be considered invasive for all successive years of monitoring.

After the site has matured to the stage when desirable canopy species reach 50% cover, the

cover of invasive understory species may increase but may not exceed 30%.

3. The densi

ty of woody vegetation is at least 1,600 live native plants (shrubs) and/or stems

(trees) per acre OR the cover of native woody vegetation on the site is at least 50%. Native

species volunteering on the site may be included, dead plants do not count, and the standard

must be achieved for 2 years without irrigation.

An applicant may propose alternative performance standards for wetlands, and DSL

may require alternative standards, if the routine standards are not appropriate for the

site. Performance standards for CNWM should be proposed by the applicant, and DSL

reserves the right to approve alternate performance standards. Performance standards

proposed by the applicant should have supporting documentation, and the standards

proposed should reflect the goals and objectives of the CM plan. Marshall et al. (2007)

provides methodology to use reference sites to help plan and evaluate vegetation

performance of mitigation sites.

In some cases, it is appropriate to include performance standards to show that specific

targeted functions have been attained at the CM site. Examples may be when DSL

approves out-of-kind replacement, or when regional conservation initiatives such as

Total Maximum Daily Load’s for water quality limited waters, or Endangered Species

Act requirements apply at the impact or CM site. Applicants may then propose, or DSL

may require, performance standards for targeted functions based on reference

conditions. Some suggestions are given in Appendix D.

9-11

Special Guidance for CM Using Tidal Waters

Tidal waters include a diverse range of vegetated and nonvegetated subtidal to intertidal

habitat types including eelgrass beds, algal beds, mudflats, low marsh, high marsh, and

tidal swamps controlled predominantly by elevation relative to tidal regime. (For

classification and descriptions of tidal waters see Estuarine System and Riverine Tidal

subsystems in Cowardin’s Classification of Wetlands

and Deepwater Habitats of the United States). Due to

the rarity of permitted impacts and diversity of

Cowardin classes found within tidal waters, mitigation

plans, and specific performance standards will be

determined by DSL on a case-by-case basis. Use of

consultants with prior experience restoring tidal waters

is recommended. In all cases, the following must be

considered:

•

Many historically tidal areas have been hydrologically altered due to diking,

ditching, and installation of tidegates. Thus, restoration and enhancement

mitigation involving the reestablishment of tidal regime are relatively easy and

have the potential for a high probability of success.

•

Observations of elevation, plant communities, salinity regime, hydroperiod over

at least a full tidal cycle, and fluvial geomorphology of a nearby undisturbed

reference sites will be needed to design a self-sustaining restored/enhanced

condition.

•

Given that the presence of a particular Cowardin class in tidal waters is

contingent upon elevation with respect to tidal regime, the grading plan will be a

fundamental component of any mitigation plan. On a case-by-case basis,

performance standards will be developed for elevation and slope with respect to

relevant tidal data and referenced to a geodetic datum.

•

In marine-sourced low and high marshes, reestablishment of desired native

species will likely happen naturally without planting because propagules will exist

in the seed bank or will be brought in by the tides. However, for River-sourced

tidal waters such as scrub-shrub and forested wetlands, planting and monitoring

of species appropriate to the salinity and hydroperiod will be required. Eelgrass

mitigation will also require planting. Performance standards for cover for desired

native species will be developed on a case-by-case basis. Monitoring may also

be required for donor sites to make sure of their recovery.

•

Invasive species of concern in estuarine tidal swamps, high marsh, and low

marsh are Spartina alterniflora, Spartina patens, Lythrum salicaria, Iris

pseudacorus, and Phalaris arundinacea (all are salt tolerant except Phalaris). In

eelgrass beds and subtidal habitats, Zostera japonica (Japanese eelgrass) and

Carcinus maenas (European green crab) are invasive species of concern (see

pages 51-52) of the Estuary Assessment.

If a project involves the

excavation of tidal mudflats to

create a subtidal condition, then

CM may be required. The

mitigation requirement will be

waived if the removal site was

previously permitted and

mitigated for.

9-12

•

All estuaries are designated essential salmonid habitat and support threatened

and endangered species such as Coho. ODFW should be consulted for

appropriate in-stream work windows, and consultation with the National Marine

Fisheries Service may be necessary if any of the proposed activities fall outside

of SLOPES.

Monitoring Methods

Describe the specific methods that will be used to monitor the CM, as they relate to the

proposed performance standards. For vegetation monitoring, DSL’s Routine Monitoring

Guidance may be referenced. If the Routine Monitoring Guidance will be altered, or

another vegetation monitoring method used, the applicant should describe these

methods in this section of the CM Plan using the guidance below.

Section 8: Long-term Protection and Financial Security Instruments

Description of Proposed Protection Instrument

The wetlands, riparian areas, uplands, and buffers that comprise the entire wetland

mitigation site must be provided long-term protection. Waterways often present unique

considerations for long-term protection, and applicants should work with DSL to

determine the appropriate protection method for those sites. The CM Plan should

describe the type of protection instrument that will be in place for the CM site and

provide a draft of the instrument as an appendix. For CM sites not owned by a public

entity, appropriate administrative protection instruments include conservation

easements, deed restrictions, or other restrictive covenants that place limitations on use

of the property, even if the property sells, and are in perpetuity. In addition, an access

easement, conveyed to DSL, must be recorded on the deed, using a template provided

by DSL.

Deed restrictions are covenants placed on a property by the property owner that prohibit

certain actions or uses on the property. Conservation easements, on the other hand are

“interests”, such as development rights, that are actually conveyed to another party.

Both are recorded on the deed to the property.

For the purpose of long-term protection, the term of deed restrictions and conservation

easements must be in perpetuity. Also, deed restrictions must contain a clause that

requires Department approval prior to any amendments or extinguishment.

Conservation easements must provide DSL with a third party right of enforcement.

Generally, conservation easements are more protective because they involve

conveyance of a property interest or property right to a specific entity. However, that

right entails a certain level of responsibility for monitoring compliance with the

easement. Potential easement holders are selective and often require an endowment to

provide for future monitoring and maintenance of the conservation easement provisions.

(While eligible to hold conservation easements, DSL is not willing to be the holder of

9-13

such property interests.) Consequently, generally only the large CM projects are

attractive candidates for this form of protection.

Conservation easements are non-possessory interests in the property and may only be

held by qualified parties (“holder”) outlined in ORS 271. These are currently:

•

The state, any county, metropolitan service district, soil and water conservation

district, city or park and recreation districts, and certain county service districts

•

A charitable corporation, charitable association, charitable trust that are

authorized to retain or protect values of real property and have as a purpose to

retain or protect the natural, scenic, or open space values of property

•

Recognized Indian tribes

Individuals, private businesses (corporations, partnerships, LLCs, etc.), or charitable

organizations with purposes inconsistent with the conservation easement statute ORS

271 may not hold conservation easements.

Whichever form of long-term protection is used, documentation should include

prohibited uses and activities. Generally, any activity that would alter hydrology of the

site, remove vegetation other than that required for maintenance (e.g. weed treatments

or tree thinning for habitat improvements), or remove or place material into the wetland

is explicitly prohibited. Hunting and seed collecting are generally permissible.

The protection instrument must include a surveyed boundary of the protected area as

an attachment or in the body of the instrument, and must be recorded on the property

deed at the County Assessor’s office. In most cases, the protected areas of a CM site

within a subdivision must be established in a separate tax lot(s) and not within lots that

will be sold to individual owners. The boundary of the protected area must be identified

in the approved plat. Permit conditions normally dictate that the instrument be recorded

prior to any impacts and a copy of the recorded instrument submitted to DSL.

For publicly owned CM sites, long-term protection may be provided through an adopted

management plan or integrated natural resources management plan. Management

plans should provide for appropriate protection of the CM site, including outlining

prohibited uses as outlined above. DSL should be provided the opportunity to review the

protection clauses of the management plan prior to adoption, and prior to modification.

Description of the Proposed Financial Security Instrument

Financial security is required for all permittee-responsible CM projects, except those

conducted by government agencies. This requirement may be waived at the discretion

of DSL for impacts less than 0.2 acres. The purpose of a financial security instrument is

to guarantee the performance of the mitigation and provide to DSL financial resources

to conduct the mitigation in the event of default of the mitigation obligation. Describe the

type of financial instrument(s) that is proposed for the CM site and provide a draft of the

instrument as an appendix using the appropriate form from DSL. Complete and submit

the Payment to Provide spread to determine the amount of surety required. A final

signed financial security instrument will be required prior to permit issuance.

9-14

The general terms and conditions of financial security instruments are:

•

Financial security instruments must be issued by an institution licensed to do

business in Oregon. A list of financial institutions licensed to do business in

Oregon can be found at Oregon Division of Financial Regulation. A list of

insurance companies authorized to issue bonds in Oregon can be found at

Oregon Consumer and Business Services.

•

Instruments will be in the amount determined by DSL as provided in OAR 141-

85-0700 (6) and must be made payable to the "Oregon Department of State

Lands".

•

The original financial security instrument should be provided to DSL prior to

authorization, or prior to credit release for mitigation banks, unless otherwise

approved by DSL. The instrument must be on the appropriate DSL template.

•

The financial security instrument must be conditioned upon meeting the

conditions of the removal-fill permit.

•

Liability period. The permit holder's liability under the financial security instrument

must be for the duration of responsibility for the CM, as set out in the approved

removal-fill permit. The term begins at the time of authorization, or prior to credit

release for mitigation banks, and must be renewed without lapse until the CM

has been released by DSL from further monitoring.

•

Release schedule: In most cases, the permit will specify an incremental financial

security release schedule based on meeting performance standards at specific

intervals. Upon request, if the CM site is meeting the required performance

standards, DSL will provide a financial security release letter to the permittee

(and copy the financial institution.) The permittee will need to supply a

replacement instrument in the reduced amount within 45 days of the financial

security release letter.

The types of financial security instruments and appropriate templates are:

•

Surety bonds: Must be provided specifically for the purpose of guaranteeing CM

site performance and executed by the permit holder and a corporate surety

licensed to do business in Oregon. Surety bonds are generally issued for one

year and the permittee is responsible for keeping the bond active as long as the

CM obligation exists. The surety bond template provided by DSL must be used.

•

Certificates of deposit: Must be issued by a bank licensed to do business in

Oregon, assigned to DSL, and upon the books of the bank issuing such

certificates.

•

Letters of credit: Are subject to the following conditions:

o The letter may only be issued by a bank authorized to do business in the

state of Oregon.

o The letter must be irrevocable prior to release by DSL.

9-15

o The letter must be payable to the "Department of State Lands" in part or in full

upon of a notice of forfeiture issued by DSL in accordance with OAR 141-085-

0700.

•

Other financial security instruments: As may be approved by DSL.

DSL will make all reasonable attempts to work with the permittee to bring an out-of-

compliance CM site into compliance. Situations that may lead to forfeiture of the

financial security instrument include failure to conduct CM, failure to provide appropriate

long-term protection of the CM site, or failure of a CM site to meet the performance

standards. In these situations, DSL may, at its sole discretion, declare forfeiture on part

or all of the financial surety. A declaration of partial forfeiture may occur where only a

portion of a CM site has failed to meet performance standards. A declaration of full

forfeiture may occur where the CM site has failed to conduct the CM, where most or all

of the CM site has substantially failed to meet performance standards, or where the

permittee has failed to meet other substantive permit conditions related to the CM site.

A declaration of forfeiture does not automatically release a permittee from its CM

obligations. DSL will issue written notice to the permittee informing them of the

declaration, the reasons for such, and what, if any, CM obligations still remain in effect

after the declaration. At its discretion, DSL may use security funds to correct

deficiencies at the CM site, if feasible, or deposit funds into the State’s Removal-Fill

Mitigation Fund.

Long-term Maintenance Plan

Most CM sites will require some form of maintenance past the monitoring period to

ensure its sustainability. This may include tasks such as maintenance of water control

structures, weed management, litter pick-up, fence maintenance, and vandalism repair.

A maintenance plan should outline the anticipated party responsible for long-term

maintenance and how these activities will be funded. The party responsible may be an

interested conservation organization (typically for larger sites), donation of the property

to a city or county, a private landowner, or a Home Owners Association arranged by a

developer at the time of local permitting and platting.

Other Requirements

For compensatory mitigation proposed on behalf of a closely held corporation, limited

partnership (LP), Limited Liability Company (LLC), or trust, there must be a joint and

personal guarantee (using Department provided form) from all shareholders/members

that secures compliance with mitigation obligations and outlines requirements to make

all reasonable efforts to maintain the business entity in active status until all mitigation

obligations have been satisfied. A “closely held corporation” is one in which all shares

are held by less than five individuals. If your corporation’s shares are held by 5 or more

individual, state that in the CM Plan if a personal guarantee is not provided.

9-16

CM for Linear Projects in Multiple Watersheds

Linear projects such as pipelines, roads, power lines, etc. that have permanent impacts

to waters of this state in multiple watersheds present a challenge for CM. It may not be

practicable or ecologically desirable to create numerous, and potentially very small, CM

sites along such corridors extending for 10’s or 100’s of miles. Applicants with linear

projects should work closely with the DSL mitigation specialists to determine the

appropriate mitigation. DSL offers the following additional guidance when planning CM

for linear projects in multiple watersheds:

•

Any proposed permanent impacts to Aquatic Resources of Special Concern (see

Appendix F of this document) are subject to the standard CM requirements.

•

For all other proposed permanent impact to wetlands, CM may be combined at

the 4th field HUC level with the mitigation requirement interpreted to mean

replacement of the predominant wetland condition being impacted in that

watershed.

Special Considerations for Eelgrass Bed Mitigation

Native eelgrass (Zostera marina) occurs naturally in many Oregon estuaries. The

eelgrass plants are rooted in soft sediments, and they frequently form expansive beds

or meadows within intertidal tideflats, or fragmented patches of discontinuous

vegetation along the edges of deeper tidal channels. Eelgrass beds typically occur in

shallow estuarine areas where water circulation is sufficient to ensure cool temperatures

and an adequate supply of nutrients. Information from Dr. Steve Rumrill (South Slough

National Estuarine Research Reserve) indicates that the primary environmental factors

that control eelgrass growth are:

•

Depth (depth range of +3 to -8.0 ft MLLW)

•

Light availability (minimum PAR of 300 µM m

-2

-1

for 3 hrs. day

-1

during spring

and summer)

•

Substratum composition (medium to fine sands, sandy-mud, gravel with 0.5 to

15.0% organic content and low sediment sulfide toxicity)

•

Temperature (optimal 7 to 12 ºC; tolerate 4 to 24 ºC)

•

Salinity (optimal 20 to 34 ppt; tolerate 3 to 35 ppt)

•

Inorganic nutrients (tolerate C:N:P ratio of 500:20:1)

•

Waves and currents (minimum 3 cm

-1

to maximum 180 cm s

-1

; burst velocities up

to 80 cm s

-1

)

It is important that candidate eelgrass mitigation sites be evaluated against these

criteria to better ensure ultimate success.

CM for eelgrass is primarily by means of restoration and creation by removing existing

fill material (or native uplands) near existing eelgrass beds to establish elevations and a

hydrologic regime suitable for supporting eelgrass beds. Generally, enhancement of

existing eelgrass beds is not a desirable form of mitigation because the planting of

unvegetated mudflat areas simply converts one high value estuarine habitat for another.

9-17

Also, if eelgrass is not already growing in a particular area, it is very likely that there are

physical conditions present that make that area not conducive to eelgrass growth.

Eelgrass is very sensitive to changes in the estuarine environment. In creating or

restoring eelgrass beds, it must be expected a significant portion of the mitigation site

will not sustain plants at a density sufficient to function as an eelgrass bed (at least 20

shoots per square meter). Literature on the subject suggests eelgrass mitigation efforts

should plan on a successful re-establishment rate of no more than about 40% to 60%.

Eelgrass beds will normally have a high degree of density variability within a given

estuarine environment. Within intact beds there can be substantial variation in density,

referred to as “patchiness,” where bare or thin spots should be expected. Density will

vary by location and elevation. Elevation will play a role but in one location deeper areas

may be denser, in another shallower areas may be denser. The minimum density for an

eelgrass area to be considered a “functioning bed” is 20 shoots per sq. meter but may

be as high as 300 shoots per square meter.

DSL will normally have an average density performance standard that is the greater of:

1) 100% of the density of eelgrass beds at the impact site; or, 2) 80% of the density at

the nearest eelgrass reference site. Applicants should anticipate needing substantially

more acreage than what the DSL minimum ratios would otherwise dictate to be sure

acreage and density requirements are met by the end of the monitoring period.

Eelgrass beds generally have a narrow window of water velocity tolerance. Excessive

velocities may continually remove sediment thus impacting eelgrass establishment.

Velocities too low may result in excessive sedimentation and/or algae build-up that may

smother eelgrass beds. Monitoring of grade stakes is likely required in the mitigation

area to measure rates of sedimentation or erosion and to make visual observations of

algae build-up. A good mitigation plan will include contingency measures in the event of

excessive erosion or sedimentation.

The height or length of eelgrass leaves is a good indicator of growth rates and biomass

production. A representative sample of plant height at the reference bed should be

measured to determine target plant heights for the mitigation site. A performance

standard could be set at a percentage of the reference metric. If the standard is not met

after a few years, it could trigger an evaluation of site selection or other factors that may

or may not be easily remedied.

Both the native eelgrass (Z. marina) and non-native eelgrass (Z. japonica) can be found

in Oregon’s estuaries. The non-native eelgrass tends to be present at a much shallower

depth but otherwise may be functionally similar. Generally relative cover of non-native

eelgrass species (Z. japonica) should be no more than 15%.

Eelgrass transplants sources will sometimes be the impact site doomed to direct impact

or shading, in which case all plants may be salvaged for use at the mitigation site. For

other sites it is recommended that only 10% of the density of the donor bed be

9-18

“harvested” to minimize disturbance of the eelgrass community. Location of the

transplant source area within the donor bed should be GPS-located and documented in

the monitoring report. Donor beds should be monitored for three years to document

recovery. If additional transplants are needed, only 10% of a new donor bed may be

harvested, and this source location documented as well.

Land ownership is an important consideration before any site is selected for eelgrass

mitigation. Ownership of Oregon’s tidelands was granted to the state at statehood.

Many, but not all, tideland areas remain in state ownership today and are managed by

DSL. Early coordination with DSL’s proprietary staff is important. Proprietary staff can

determine if the land is state owned, and if state owned, identify what other

encumbrances may already exist at the site, whether mitigation may be allowed at the

site, and, if so, what easements are required to encumber the land with eelgrass

mitigation. Permanent easements can involve significant compensation payment to DSL

and require Land Board approval. That approval process can take substantially longer

than the removal-fill permit process.

10-1

Chapter 10: Monitoring the Compensatory Mitigation Site

Chapter Overview

Monitoring a compensatory mitigation (CM) site allows DSL to determine whether the

site is meeting the goals, objectives and performance standards outlined in the CM plan

and required in the permit.

This chapter provides guidance on collecting and analyzing the field data necessary to

prepare a CM monitoring report, including:

• Monitoring methods for vegetation and determining the area of wetland achieved

• Data analysis standards for evaluating field data against the established

performance standards for the site

• The types and content of mitigation monitoring reports that may be required;

and,

• The duration of the monitoring period

10-2

Purpose

Monitoring of a CM site allows DSL to determine whether the site is meeting the goals,

objectives and performance standards outlined in the CM plan and required in the

permit. Therefore, monitoring requirements will need to be tailored to the individual

project under consideration. General information on collecting and analyzing the field

data necessary to report on performance standards is provided here.

DSL has developed Routine Monitoring Guidance for Vegetation that will satisfy

Department requirements for CM monitoring for the routine performance standards

for wetlands and buffers. However, there may be situations where the methods

outlined are not appropriate to the site, or the investigator has developed alternate

methods that s/he is comfortable with. Alternative methods may be used provided

that DSL’s monitoring standards are met and DSL has approved the alternative

methods.

Monitoring Methods

Area of Wetland Achieved

To demonstrate wetland acreage achieved, a delineation should be conducted in

accordance with the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual

and Regional Supplements. For the purposes of mitigation site reporting, certain

shortcuts will be allowed—see the insert box below for additional information on

delineation light. General wetland delineation resources are available on DSL’s

website. If hydric soil indicators are not readily apparent in your mitigation site please

follow the guidance in the Regional Supplements to Corps Delineation Manual. In the

Arid West Manual Supplement, see page 87 (#4) for why recently developed wetlands

may have problematic hydric soils, and follow the procedure on pp. 87-93. In the

Western Mountains Supplement, see page 111 (#5) for why recently developed

wetlands may have problematic hydric soils, and follow procedure on pp.112-115.

Chapter 10: Monitoring the Compensatory Mitigation Site

If permit conditions conflict with proposed methods or standards in CM or monitoring

plans, the permit will control. It is very important to review permit conditions prior to

project implementation or monitoring to ensure a clear understanding of the CM obligations.

The permit is considered a “contract” and the conditions are in full force and effect upon

implementation of the authorized activity. The Department is under no obligation to consider

requests to revise conditions or objections to conditions after commencement of work in

waters of this state.

10-3

Delineation Light for Mitigation Monitoring

Objective: This guidance provides minimal standards for defining the acreage of wetland achieved in

mitigation sites. The mitigation monitoring light delineation is treated as an amendment to the formal

delineation (following OAR 141-90) prepared for the pre-project CM site. The delineation light should

not repeat any of the background information from the pre-project CM delineation, except as outlined

below. Some mitigation site delineations will follow the “atypical” delineation protocols because of the

recent disturbance of the mitigation activities. Please include the original authorization number

associated with the permit and mitigation.

Sample plots: The number of plots will depend on the size & complexity of the site. Characterization

plots are not needed, as other vegetation data will be collected. Paired plots should be located along

all topographic boundary lines, plus additional plot pairs on any high points in the topography or areas

where water enters or leaves the site at a higher or lower contour. Use the wetland determination data

forms (Western Mountains, Valleys, and Coast Region or Arid West Region) for each plot and provide

these as an appendix to the report. CM sites with soil alteration need not meet hydric soil field

indicators—because these features may take years to develop—but they may still meet the definition

of a hydric soil if indicators of hydrophytic vegetation and wetland hydrology are present. These

“problematic hydric soils” include recently developed wetlands. Follow the supplement procedure in

Chapter 5 of the supplements to determine if hydric soil criteria for problematic hydric soils are met.

Map requirements: The map(s) should include the tax lot lines, study area boundary, as-built

topography, and pre-and post CM wetland boundaries for each habitat type. Map and label buffers,

target habitat types, and/or treatment type areas (restoration, creation, enhancement), sample points,

and photo-points. Wetland boundaries and plot location mapping precision should be one meter (3.3

feet) for most sites. Vegetation monitoring transects & data points should be on a separate map of the

same scale.

Timing: Delineation plot data should be collected in the early growing season of a normal

precipitation year, and additional site visits may be needed to identify late-maturing plants. Refer to

OAR 141-090-0035(12)(c) which explains what is required for precipitation data. The delineation

needs to be done once but must be received with or before the fifth year monitoring report. Vegetation

performance monitoring needs to be done annually and should be done in mid-summer so that most

plants are readily identifiable.

DSL Staff Review: This delineation will be reviewed as part of the monitoring report. There is no

additional review fee, nor separate concurrence provided.

The delineation should be received by DSL no later than the fifth year monitoring report,

but may be conducted any time after grading and planting is substantially completed,

during spring of a year when precipitation has been near normal. The monitoring report

should provide a table with acreages of actual restoration, creation and/or enhancement

achieved by both HGM subclass and Cowardin class, to the nearest tenth of an acre,

and correspond with mapped boundaries and labels. In some cases, avoided wetlands

may also require monitoring to show that wetland criteria continue to be met. Pre-

existing wetlands at the site that were not approved for conservation or enhancement,

and non-wetland areas (e.g. upland areas greater than 0.01 acres not including

10-4

microtopographic features like hummocks) within the larger CM wetland boundary

should be excluded from area calculations and designated on maps of the CM site.

Vegetation and Bare Substrate Standards

Vegetation monitoring will normally occur and be reported annually so that progress

toward meeting performance standards can be evaluated and adaptive management

implemented, if necessary. For slow developing habitats, such as forested wetlands, a

ten-year monitoring period with monitoring every other year may be proposed. Sampling

should be conducted the same season each year, during the growing season when

vegetation is more easily identifiable. Sites that are seasonally under water may need to

be sampled at a separate time than the rest of the site, or alternative sampling methods

proposed.

All vegetation monitoring should:

• Separate habitat types for sampling procedures and performance

assessment. To ensure correct sampling procedures and performance

assessment, areas of different Cowardin classes (actual or targeted) that are

0.25 acres or larger should be stratified into separate monitoring units.

• Be representative of the site. Any monitoring protocol used should be able to

estimate the population mean with a confidence level of 80%. The maximum

acceptable confidence interval (precision) is ±10. A sufficient number of samples

should be taken using a random approach. Field inspections by DSL may be

used to verify that plot data fairly represents the site.

• Be verifiable. All sample plots should be clearly marked or otherwise locatable in

the field (e.g. distance along a permanently monumented transect) so that data

reported can be checked during DSL visits, if necessary.

Visual estimates of percent cover observed during the growing season are generally

sufficient for mitigation monitoring, although other methods may also be used. Area not

covered by vegetation should be recorded as bare substrate. Include and make note if

the bare substrate is open water, litter, duff, wood, bare soil or rock. For woody plant

density, it may be difficult to determine what constitutes an individual plant for some

species such as rose or huckleberry. The person counting should describe how these

species were counted (e.g. stem clusters greater than 1’ away from other stem clusters

were counted as one plant). For shrubs and tree cover, the crowns are projected

vertically and distinct holes in the canopy should be subtracted from the estimate.

Plants overhanging into the sample plot, but that are rooted in an area that does not

represent plot conditions, should also be subtracted from cover estimates (e.g. rooted

outside the wetland boundary).

10-5

Native/Invasive Species Standards

A plant species should automatically be labeled as invasive if it appears on the current

Oregon Department of Agriculture Noxious Weed list, plus known problem species

including Phalaris arundinacea, Mentha pulegium, Holcus lanatus, Anthoxanthum

odoratum, and the last crop plant if it is non-native. Non-native plants should be labeled

as such if they are listed as non-native on the USDA Plants Database. Two known

exceptions are Alopecurus geniculatus, which Oregon Flora Project calls native, so DSL

will consider it native; and Alisma plantago-aquatica, which according to USDA plants

database, is a European species that occurs in Alaska & Washington, not Oregon.

Because the USDA Plants database also lists Alisma triviale as native in Oregon and

many other states, and says A. triviale is a synonym of A. plantago-aquatica. DSL

considers it most likely that Oregon plants are the native Alisma triviale. The Oregon

Vascular Plant Checklist is currently being developed by Oregon State University’s

Oregon Flora Project and may be a better regional resource in the future.

Beginning in year 2 of monitoring, DSL may consider a non-native plant species

invasive if it comprises more than 15% cover in 10% or more of the sample plots in any

habitat class and increases in cover or frequency from the previous monitoring period.

Plants that meet this definition should be considered invasive for all successive years of

monitoring.

Steps for Visually Estimating and Recording Aerial Cover for Routine Performance

Standards

The following procedure may be used to record data for projects using the routine performance

standards (see Table 6 for example):

Use a plot frame or a handful of flags to mark the perimeter of your plot and divide the plot into 4

quarters to improve accuracy of estimates.

1. First, estimate the percent of the whole plot area that is bare substrate, which includes all

areas of the plot in which, when viewed from above, the ground surface is not obscured or by

live plant material. Include and make note if the bare substrate is open water, litter, duff, wood,

bare soil or rock. This is the number to compare to the percent bare substrate performance

standard.

2. Next, list each plant species observed in the plot by strata. Include plants that are rooted

outside the plot but extend into the plot. (Exception – do not include cover of plants that are

rooted on a different topographic surface, that do not reflect conditions in the plot itself. Cover

by moss should not be recorded.)

3. Record the absolute cover of each listed plant in the plot – the percent of the whole plot area

occupied by that species. Include foliage that is layered over by some other species.

4. Total the percent vegetative cover. In dense vegetation, this total can exceed 100%, even if

there is also some bare ground.

10-6

Diversity Standards

Diversity standards should include the number of native species to occur with a minimal

cover and at a minimal frequency. For example, the routine performance standard

outlines that a species must have an average of at least 5% cover in the habitat being

sampled, and that species must occur in at least 10% of the plots sampled (e.g. be

present in 2 out of 20 plots).

Prevalence Index

The prevalence index of each plot may be calculated using methods outlined in the

1987 U.S. Army Corps of Engineers Wetlands Delineation Manual Supplements. It is

also automatically calculated using DSL’s Vegetation Monitoring Spreadsheet. Analysis

of the wetland status of vegetation should use the updated List of Plant Species That

Occur in Wetlands: Northwest (Region 9) Plant Lists).

Follow the U.S. Army Corps of Engineers Wetlands Delineation Manual Supplements in

determining how to treat plant species with NO (no known occurrence in the region at

the time the list was compiled) or NI (reviewed but given no regional indicator). For

species that are listed as NO or NI, apply the indicator status in the nearest adjacent

region. If no adjacent regional indicator is assigned, do not use the species to calculate

the prevalence index. See the Routine Monitoring Guidance document for instructions

on calculating the prevalence index as a performance standard.

Data Analysis Standards

Data collected from compensatory mitigation projects may be entered into DSL’s

Vegetation Monitoring Spreadsheet or any similar spreadsheet or database and

analyzed for the performance standards.

Data analysis calculations for the routine performance standards are included in the

Routine Monitoring Guidance. Monitoring reports should include the DSL’s Vegetation

Monitoring Spreadsheet, or similar spreadsheet tallying all vegetation and substrate

data by plot for each wetland habitat type as described in Routine Performance

Standards (see Section 8: Compensatory Mitigation Planning for Wetlands and Tidal

Waters). Values for performance standards should be reported as the sample mean

with a confidence interval. This is shown as Mean (CI

= Y

-Y

), where:

• CI = confidence interval

• x = 80% confidence level

• Y

= low estimate

• Y

= high estimate

10-7

For example, an estimated cover by native herbaceous species reported as 30% (CI

80%

= 27-33%) means that you are 80% confident that the true cover value is between 27%

and 33%. DSL will assume that cover values reported represent absolute cover.

Monitoring Reports

The routine reporting schedule is outlined in Table 9-2. All reports should be unbound

without report folders covers or dividers and should omit boilerplate background

information and other extraneous material, such as rule citations and recitations of the

1987 COE wetland delineation manual. Follow the report format guidance below.

Table 9-2: Routine Schedule

Report

Requirements

Schedule

Financial Surety

Release Schedule

Post-Construction

(1)

Post Construction Report

(2)

Recorded Protection

Instrument

90 days after completion of

grading or revegetation

1st Annual

Report

Establishment of permanent

monitoring locations

Vegetation performance

standards

Demonstration that wetland

hydrology has been

accomplished

Evidence that water rights are

secured, or are not required

After one growing season

of all proposed plantings

25% upon approval of

the first annual

monitoring report and

post-construction

report: site in

compliance with

performance standards,

and hydrology

confirmed.

Site protection

instrument recorded.

2nd Annual

Report

Vegetation performance

standards

After two growing seasons

3rd and 4th

Annual Reports

Vegetation performance

standards

Actual acreage achieved by

HGM and Cowardin class

After three and four growing

seasons, respectively.

A “light delineation” should

be completed during spring

of a year when precipitation

has been near normal and

no irrigation has been in

Up to 25% of original

amount upon achieving

wetland acreage

confirmed by

delineation of wetland

hydrology and wetland

vegetation, and

Absolute Cover refers to the percentage of the ground surface that is covered by the aerial

portions (leaves and stems) of a plant species when viewed from above. The sum of absolute

cover values for all species in a community or stratum may exceed 100 percent. Absolute

cover values are used to calculate the Prevalence Index.

Relative Cover is calculated as the absolute cover divided by the sum of all covers

(vegetation only or vegetation plus substrate) in the plot. Relative cover values may be used

to report on mean cover, but not used to calculate the prevalence index.

10-8

Report

Requirements

Schedule

Financial Surety

Release Schedule

use during the previous two

years

meeting all applicable

performance standards

Annual Report

(or final report if

the monitoring

period has been

extended)

Vegetation performance

standards

Functions and values

assessment

1,2

After five growing seasons

Final 50% release upon

meeting all

performance standards.

The performance

standards must be met

for the final two

consecutive years

without corrective or

remedial actions (such

as irrigation, significant

weed/invasive plants

treatment or replanting)

These requirements may be fulfilled any time during the monitoring period but must be received by DSL

no later than the fifth year of monitoring.

Functions and values assessments shall meet the standards and requirements in 141-085-0685. The

same assessment method used for the pre-mitigation site functions and values assessment should be

used for monitoring purposes, unless otherwise approved by DSL.

Post Construction Report

The post construction report should include the as-built and a copy of the recorded

protection instrument if not submitted previously. The post construction report is due no

later than 90 calendar days from the date of completion of grading or revegetation at the

CM site.

The as-built report must include the final surveyed grades, photos, and a brief narrative

explaining any changes that were made from the approved plan. The as-built drawing

should be labeled with permit number, the date of grading completion, and have any

changes in grading clearly identified. If there were no changes from the approved plan,

a statement on the plan should state this.

The recorded protection instrument (deed restriction or conservation easement) must be

identical to the draft approved prior to permit issuance, unless otherwise approved by

DSL. It must contain a stamp from the County Assessor’s office, indicating that it was

recorded and the date of recordation.

Annual Monitoring Report Format

Monitoring reports should be submitted to DSL annually to present the results of that

season’s monitoring. Monitoring reports shall include all data necessary to document

compliance with permit conditions, and success in meeting the CM goals. The report

should follow the following report format:

10-9

1. Cover Sheet: The cover sheet consists of a completed and signed Mitigation

Monitoring Report Cover Sheet. All the permit specific performance standards

must be listed on the Report Cover Sheet, using the exact language found in the

permit, along with a determination of whether or not the site is meeting each

standard.

2. Supporting Information: Describe any changes to monitoring methods if they

differ from those outlined in the approved CM Plan. For performance standards

or financial security releases that evaluate

hydrology, include 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.

If the monitoring year included a determination of the area of wetland achieved,

provide an update to the summary table provided in the approved CM Plan here,

and provide the delineation light report as an appendix.

If the monitoring year included a function and values assessment, provide an

update to the summary table provided in the approved CM Plan here and provide

the assessment information and documentation as an appendix. Remember that

the same assessment method and version used to assess the CM site in the

planning phase (predicted condition) must be used to assess the post-condition.

DSL will maintain all previous versions of the functions and values assessment

methods.

3. Summary Data: Summary data should be provided to substantiate the success

and/or potential challenges associated with the CM project. A spreadsheet,

database report or table should summarize data. If the site and accompanying

data is large, a data summary for each wetland type should be provided here,

and the summary data for sample units and plots included as an Appendix. Data

summaries should:

•

Give each sample plot a unique identifier that relates the data to the plot

location on a map

•

Include the full Latin botanical name of all plant species listed;

•

Include the wetland indicator status and a native/non-native/invasive

designation for each plant species listed

•

Show data for each sample plot

•

Calculate the performance standards for each sample unit and wetland

type as required. Summarize the data for each wetland type and report on

performance standards

DSL offers two tools to help

permittees prepare their annual

mitigation monitoring reports:

• M

itigation monitoring report

template (Word format)

• Mitigation reporting spreadsheet

template for vegetation monitoring

(Excel format)

10-10

4. Maps: Maps should be at a scale suitable for the study area size and for

legibility. For most purposes, an appropriate scale is 1 inch = 100 feet. For large

study areas, a scale of 1 inch = 200 feet may be sufficient. Each map should be

formatted to print on a standard 8 ½” x 11” piece of paper. Map(s) should at a

minimum include:

•

The boundaries of the entire tax lot

•

The project site boundary in relation to the tax lot boundaries

•

All water features and their boundaries

•

Pre-existing wetlands and waterway on the site (use boundaries from the

pre-project wetland delineation)

•

The wetland and waterway boundaries after the post-project wetland

delineation has been completed

•

Sample plots/units labeled to correspond to monitoring data

•

Photograph locations and direction of view

•

North arrow and scale bar

•

Mitigation boundaries, including buffer

5. Conclusions and Recommendations: A general statement should be included

that describes the conditions of the compensatory mitigation project. If

performance standards are not being met, a brief explanation of the difficulties

and potential remedial actions proposed, including a timetable, must be provided.

DSL will ultimately determine if the CM site is successful for a given monitoring

period. This section may also include a request for release of all or part of a

financial security instrument. DSL will authorize release of the financial security

instrument as the CM meets the requirements of the CM plan and the condition

of the permit. The request should include (if not provided elsewhere in the report,

or if submitted separately from the monitoring report):

•

The precise location of the CM area

•

The permit holder’s name

•

The permit number and the date it was approved

•

The amount of the financial security instrument filed, and the proportion

proposed for release

•

A description of the results achieved relative to the permit holder’s

approved CM plan and permit conditions

6. Appendices: Photo documentation, as required in the grant agreement or to

support the findings and recommendations referenced in the monitoring report,

should be provided. Photos should be formatted to print on 8 ½” x 11” piece of

paper and be labeled with a unique identifier to correspond to the mapped photo

location point (see maps below).

Appendices may also include items such as data summary sheets not included in

the main report, information on reference site conditions, the post-project wetland

delineation light, an evaluation of the functions and values achieved, and/or the

final long-term maintenance plan.

10-11

Monitoring Duration

Monitoring will generally be required annually for a minimum of five years, beginning

one growing season after planting is completed (e.g. if the site is planted in January, the

first monitoring report would normally be due by November of that same year with

monitoring performed at the end of summer or early fall), unless an alternative

monitoring schedule was approved as part of the CM plan. If performance standards,

replacement acreage requirements, or functions and values replacement requirements

are not being met, the permit holder may work with DSL to modify the CM plan. Actions

may include, but are not limited to, requiring remedial actions to be taken, requiring

additional mitigation, and/or requiring additional monitoring.

When the CM complies with the conditions of the removal-fill permit, DSL will notify the

permit holder in writing that additional monitoring is not required.

A-1

Appendix A: Information Sources to Guide CM Site Selection

Additional information sources are:

• Mitigation Planning Map Viewer available on the Oregon Explorer’s Aquatic

Mitigation topic page. The spatial information made available in the tool will help

facilitate a watershed approach to aquatic mitigation using data that describes

watershed characteristics, processes, and strategic areas.

• Oregon Department of Fish and Wildlife biologists

• Local watershed councils have conducted watershed assessments for many

areas of the state. Contact the local watershed council for additional information

or updates to the assessment.

• Soil and Water Conservation Districts

• Natural Resource Conservation Service

• Tidal Waters:

o Green Point Consulting has published restoration prioritizations for the

Nehalem, Yaquina, Alsea, Siuslaw, Umpqua, Smith.

o The Lower Columbia River Estuary Partnership has developed restoration

priorities for the Columbia River estuary.

o The Tillamook Estuary Partnership is a helpful resource for identifying

potential mitigation sites in Tillamook Bay.

o A GIS-based resource titled “Oregon Coastal Watershed GIS Tidal

Wetland Assessment” is available for download from the Oregon Coastal

Atlas. This map classifies tidal wetlands in Oregon’s estuaries (excluding

the Columbia River) into three HGM subclasses for Tidal wetlands, maps

areas of fill, and identifies potential Restoration Consideration Areas.

o A historical vegetation GIS layer that could be used to identify areas that

were historically tidal marsh and tidal swamp is available from the Oregon

Biodiversity Information Center.

B-1

Appendix B: Cowardin and Hydrogeomorphic Wetland and Tidal

Waters Classification

Cowardin Systems and Classes (Cowardin et al. 1979).

System

Subsystem

Class

Abbreviation

Estuarine (E)

Subtidal (1)

Intertidal (2)

Rock Bottom (RB)

E1RB

Unconsolidated Bottom

(UB)

E1UB

Aquatic Bed (AB)

E1AB, E2AB

Reef (RF)

E1RF, E2RF

Streambed (SB)

E2SB

Rocky Shore (RS)

E2RS

Unconsolidated Shore

(US)

E2US

Emergent (EM)

E2EM

Scrub Shrub (SS)

E2SS

Forested (FO)

E2FO

Open Water/Unknown

(OW)

E1OW

Riverine (R)

Tidal (1)

Lower Perennial (2)

Upper Perennial (3)

Intermittent (4)

Unknown Perennial (5)

Rock Bottom (RB)

R1RB, R2RB,

R3RB, R4RB,

R5RB

Unconsolidated Bottom

(UB)

R1UB, R2UB,

R3UB, R4UB,

R5UB

Streambed* (SB)

R1SB, R4SB

Aquatic Bed (AB)

R1AB, R2AB,

R3AB, R4AB,

R5AB

Rocky Shore (RS)

R1RS, R2RS,

R3RS, R4RS,

R5RS

Unconsolidated Shore

(US)

R1US, R2US,

R3US, R4US,

R5US

Emergent (EM)

R1EM, R2EM

Open Water/Unknown

Bottom (OW)

R1OW, R2OW,

R3OW, R4OW,

R5OW

B-2

Cowardin Systems and Classes (Cowardin et al. 1979)cont.

System

Subsystem

Class

Abbreviation

Lacustrine

Limnetic (1)

Littoral (2)

Rock Bottom (RB)

L1RB, L2RB

Unconsolidated Bottom

(UB)

L1UB, L2UB

Aquatic Bed (AB)

L1AB, L2AB

Rocky Shore (RS)

L2RS

Unconsolidated Shore

(US)

L2US

Emergent (EM)

L2EM

Open Water/Unknown

Bottom (OW)

L1OW, L2OW

Palustrine

No Subclasses

Rock Bottom (RB)

PRB

Unconsolidated Bottom

(UB)

PUB

Aquatic Bed (AB)

PAB

Unconsolidated Shore

(US)

PUS

Moss-Lichen (ML)

PML

Emergent (EM)

PEM

Scrub-shrub (SS)

PSS

Forested (FO)

PFO

HGM Classes and Subclasses (Oregon Department of State Lands 2001)

Class

Subclass

Abbreviation

Estuarine Fringe

Marine Sourced High

EMH

Marine Sourced Low

EML

River-Sourced

ERS

Riverine

Flow-Through

RFT

Impounding

Depressional

Closed Permanently

Flooded

DCP

Closed Nonpermanently

Flooded

DCNP

Outflow

Alkaline

Bog

Slope

Headwater

Valley

Flats

No Subclasses

Flat

Lacustrine Fringe

Headwater

LFH

Valley

LFV

C-1

Appendix C: Suggested Outline for CM Plans Using Preservation

Section 1: Preservation Plan Overview

1.1 Description of CM Concept

1.2 Summary of CM Acreage

1.3 Summary of Function & Value Gains and Losses

Section 2: CM Site Information

2.1 Site Owner Information

2.2 Physical Location Information

Section 3: Preservation Site Conditions

3.1 Wetland Delineation or Determination Results

3.2 Proposed Mitigation Ratio and Rationale

3.3 Existing HGM, Cowardin, and Stream Classes On-site

3.4 Description of Existing Hydrology

3.5 Existing Plant Communities

3.6 Functions and Values Assessment

3.7 Threat of Development

3.8 Additional Rationale for Preservation (must address at least one)

Significant Population of Rare Plants or Animals

Rare Wetland or Tidal Waters Type

Native, Mature Forested Wetland

Serves a Documented Watershed Need or Preserves Wetland Type

Disproportionately Lost

3.9 Surrounding Land Uses and Likely Effects

Measures to Minimize Likely Effects

Section 4: Monitoring Plan

4.1 Proposed Performance Standards

4.2 Monitoring Methods

4.3 Monitoring Schedule

4.4 Rationale for Plot and Photo-Documentation Locations

Section 5: Long-term Protection, Management and Funding

5.1 Description of Proposed Protection Instrument

5.2 Long-term Management Plan

Description of Long-Term Maintenance Actions

Entity Responsible for Maintenance

Funding Mechanism for Monitoring and Long-Term Management

The following tables and figures list identifies the key tables and figures appropriate for most CM

plans. It is not intended to be an all-inclusive listing. Applicants should include any additional

tables/figures necessary to clearly and concisely present the elements of their CM proposal.

C-2

Tables:

Impact and Mitigation Summary Table

Functions and values assessment Summary

“Coverpg” and “FinalScores” Sheets for Impact & Mitigation Sites (if using

ORWAP)

Monitoring Schedule

Figures:

Preservation site location map

Wetland delineation map for preservation site

Monitoring site locations

Appendices:

Functions and values assessment Data Forms, Maps, Aerial Photos (impact and

mitigation site)

Draft Long-term Protection Instrument

Draft Funding Instrument for Monitoring and Long-term Maintenance

Others appendices as necessary

D-1

Appendix D: Optional Performance Standards Based on Targeted

Functions

Applicants may propose, or DSL may require, performance standards for targeted

functions. Examples of when this may be required are when DSL approves out-of-kind

functional replacement or converts one HGM or Cowardin class of wetland to another,

or when regional conservation initiatives such as TMDL’s or Endangered Species Act

requirements apply at the impact or CM site.

Table D-1 outlines parameters that are important to wetland functions (Oregon

Department of State Lands 2001) and that meet the purposes of performance

standards. These standards should be developed based on reference site conditions,

and/or be developed with help from experts such as DSL mitigation and wetland staff, or

external experts such as ODFW biologists. Wording of the standards is important,

because lack of clarity will cause disputes over their meaning, and therefore debate as

to when they are achieved. Performance standards must meet the general goals

outlined above and must be enforceable. To be enforceable, a standard must be

specific, observable, and measurable.

Hydroperiod

CM sites should have natural hydroperiods and little acreage with static high water

levels. Piezometers or shallow wells may be placed in specific locations as necessary to

demonstrate the hydroperiod at a site. In areas with permanent water proposed, use of

water level gauges may be appropriate.

1.1 Duration: Permanent and Seasonal Water Zones

The areas of the CM site that contains surface water even during times of biennial low

water are permanent zones. These areas can be important for attracting amphibians.

Alternatively, seasonal zones where sediments become periodically unsaturated are

important for water storage and delay, suspended sediment retention, and phosphorus

adsorption.

Permanent water can also attract bull frogs, which complete with native frog species.

Therefore, DSL may provide a standard requiring mitigation sites to completely dry out

for at least a portion of the summer to help support the native frog habitat.

Sample Performance Criteria: “The wetland area will be dry at the surface in late

summer of each of the first 5 years that have total precipitation with 30% of average.

This standard will be documented by a representative on-site photo showing the ground

surface in each of the planting zones. Place temporary poles or flags to clearly

identifying the created wetland/pond boundary in the photographs. This is to clearly

show if inundation is within the pond area or the creation area. The poles and flags

must be removed at the end of monitoring.”

D-2

1.2 Water level fluctuations

Water level fluctuations can indicate level of function for water storage and delay and

nitrogen removal (anoxic/oxic conditions). Severe fluctuations can reduce reproductive

success of many fish species that lay their eggs in shallow areas, amphibians that lay

eggs in water on vegetation, and waterfowl that make their nests along the water’s

edge. Both the absence of fluctuation and the occurrence of excessive fluctuation can

limit plant species richness. Fluctuations may be represented as the difference between

biennial high and low spatially predominating water levels by categories, or vertical

increase in surface water level (ft) in most of the seasonal zone.

Sample Performance Criteria: “The vertical increase in the surface water level in the

seasonal zone during an average year (2-year peak flow recurrence interval) will be at

least 2 feet,” or “The difference between biennial high and low predominating water

levels will be no more than 2 classes as defined in Oregon Department of State Lands

(2001).”

Vegetation

2.1 Vegetation in the Seasonal Zone

Increased cover of vegetation increases roughness and the capacity to slow water long

enough for some infiltration, evapotranspiration, and sediment deposition to occur.

Sample Performance Criteria: “The percent of the seasonal zone that is bare during

most of the dry season is no more than 20% greater than reference conditions by year

5.”

Vernal pools/shorebird scrapes and mud flats are important for many species of

waterbirds for feeding and/or resting. These areas meet all of the following criteria

(Oregon Department of State Lands 2001):

a. Herbs are generally shorter than 4 inches and comprise <80% ground cover

during winter or early spring, and

b. topography is generally flat, and

c. inundated to a depth of less than 6 inches for 2 or more continuous weeks,

and

d. are never shaded by trees, shrubs, or buildings, and

e. are not entirely a constructed ditch

Sample Performance Criteria: “The annual extent of vernal pools, shorebird scrapes

and mudflats is at least 100 square feet.”

Fish benefit from a relatively open canopy that allows solar inputs to support

invertebrate communities, although this must be balanced with water temperature

requirements. “Canopy” relates to shading of the water surface by vegetation and is not

restricted to forested systems.

D-3

Sample Performance Criteria: “The percent of the seasonal zone that contains a closed

canopy will be between 20-80% by year 5.”

2.2 Shading in Permanent Zone

Shading by woody or aquatic plants can provide thermoregulation functions that are in

turn important for fish habitat and water quality.

Sample Performance Criteria: “The percent of the permanent zone shaded by woody or

aquatic plants is 80% that at the reference site by year 5.” The rate of canopy closure in

forested sites may also be used.

Physical and Chemical Characteristics

3.1 Shore Slope

Gradually sloping shorelines provide more area for fish spawning, amphibian habitat,

and waterbird habitat.

Sample Performance Criteria: “The CM site shall have side slopes of 15:1 or shallower

for the first 15 meters measured perpendicular from the upland edge for 50% or more of

the perimeter, as reflected in the post construction report.”

3.2 Open Water Interspersion

Sites in which unvegetated open water areas are well-interspersed with stands of

emergent vegetation can increase function of the site for primary production, and for

amphibians and waterbirds if the site is larger than ~1 acre and wider than 100 feet.

Sample Performance Criteria: “During a year of normal precipitation, at least 30% of the

site contains non-contiguous, unvegetated pools during the growing season.”

3.3 Water Quality

Support of wildlife and growth of characteristic vegetation requires good water quality.

This may include temperature, turbidity, dissolved oxygen, pH, and low levels of toxics.

Sample Performance Criteria:

Soil and Sediment Characteristics

Organic content and nutrient concentrations in the soil may be important to ensure

vegetation targets, especially for wetland creation sites or in areas where organics and

nutrients in the soil are known to be limiting.

4.1 Organic Content

Organic matter supports prolific microbial communities that are key to most nutrient

cycling. Accumulated soil organic matter also indicates depositional conditions that

imply sediment and nutrient retention (Oregon Department of State Lands 2001). Soil

organic matter is also important for plant growth at the site, although large amounts of

organic content can indicate that carbon is not being cycled effectively and primary

D-4

production is lower. Site managers may elect to augment the soil with organic matter

during construction of the site.

Sample Performance Criteria: “The median values of soil/sediment organic content at

the CM site shall be equal to the minimum value at the reference site prior to planting,”

or “The median values of soil/sediment organic content shall be equal to the minimum

value at the reference site by year 5.”

4.2 Soil Nutrients

Nutrient content in the soil increases plant production and ultimately soil organic

content. Site managers may elect to augment the soil with fertilizer during construction

of the site, during planting, or as part of vegetation maintenance.

Sample Performance Criteria: “The soil shall be augmented with fertilizer as

recommended by a soil nutrient analysis prior to planting.

D-5

Table D-1: Possible Monitoring Parameters for Targeted Non-tidal Functions (DSL 2001).

Parameters to Monitor

Functional Characteristics

Water

Storage and

Delay

Sediment

Stabilization

Phosphorus

Retention

Nitrogen

Removal

Thermoregulation

Primary

Production

Anadromous

Fish

Resident

Fish

Amphibian

Habitat

Waterbird

Habitat

Characteristic

Native

Vegetation

Geographical

Actual acreage by habitat class

•

Permanent water

•

Seasonal water

•

Seasonal area - vegetated

•

Seasonal area w/woody veg.

Biological

Species,

% cover, and native/non-native

status in seasonal and permanent

zones of:

•

Herbs

•

Woody

•

Bare (dry season)/mud flat

Open water interspersion

Rate of canopy closure

Percent of permanent zone shaded

Physical

Shore slope

Water

depth (max. and classes) and

distribution during low water

Water

depth (max. and classes) and

distribution during high water

D-6

Parameters to Monitor

Functional Characteristics

Water

Storage and

Delay

Sediment

Stabilization

Phosphorus

Retention

Nitrogen

Removal

Thermoregulation

Primary

Production

Anadromous

Fish

Resident

Fish

Amphibian

Habitat

Waterbird

Habitat

Characteristic

Native

Vegetation

Water

level fluctuation (annual high &

low predominating)

Duration (Connection to other

waterbody,

or duration of water

presence)

Chemical

Water Quality

Soil/Sediment

Organic content

Nutrient levels

E-1

Appendix E: Preparing the Alternatives Analysis

Introduction

Oregon Administrative Rule (OAR 141-085-0550(5)(o)) requires that applications for

removal-fill permits include “an analysis of alternatives to derive the practicable

[emphasis added] alternative that has the least reasonably expected adverse impacts

on waters of this state”. Practicable means it can be accomplished after taking into

consideration cost, existing technology, and logistics with respect to the overall project

purpose. The alternatives analysis is a tool to help identify the practicable alternative

with the least impact, and as such, should be introduced early in project design. It

should not be used as a means to justify what has already been decided.

A good alternatives analysis is built on four foundations:

• Clearly documented project purpose (project objectives)

• Project-specific criteria used to evaluate alternatives

• A clearly articulated range of alternative locations and site designs that avoid and

minimize impacts

• Documented evaluation of each alternative location and site design against the

project criteria

Applicable Statutes and Rules

DSL is required by statute (ORS 196.825 (1)) to make two determinations in issuing a

removal-fill permit:

1. The project described in the application must be consistent with the protection,

conservation and best uses of the waters of this state.

2. The project does not unreasonably interfere with preservation of waters for

navigation, fishing and public recreation.

The terms “consistent,” “best uses” and “reasonableness” allow DSL considerable

discretion in decision-making.

Additionally, DSL is required (ORS 196.825 (3)) to consider certain factors in making

determinations related to an application:

1. The public need for the proposed fill or removal and the social, economic or other

public benefits likely to result from the proposed fill or removal. When the permit

applicant is a public body, DSL may accept and rely upon the public body’s

findings as to local public need and local public benefit.

2. The economic cost to the public if the proposed fill or removal is not

accomplished.

3. The availability of alternative locations to the project for which the fill or removal

is proposed.

4. The availability of alternative site designs for the proposed fill or removal.

E-2

5. If the proposed fill or removal conforms to sound policies of conservation and

would not interfere with public health and safety.

6. If the proposed fill or removal is in conformance with existing public uses of the

waters and with uses designated for adjacent land in an acknowledged

comprehensive plan and land use regulations.

7. If the proposed fill or removal is compatible with the acknowledged

comprehensive plan and land use regulations for the area where the proposed fill

or removal is to take place or can be conditioned on a future local approval to

meet this criterion.

8. If the proposed fill or removal is for streambank protection.

9. If the applicant has provided all practicable mitigation to reduce the adverse

effects of the proposed fill or removal in the manner set forth in ORS 196.800.

The statute does not tell DSL how to include such considerations into its permit

decision-making. The agency has considerable discretion to exercise its judgment in

addressing these considerations provided it is in line with the general policy of the

statute and any final decision on a permit conforms to the determinations set forth

above.

Purpose and Need Statements

All projects must have a defined purpose(s) and an articulated need for the proposed

removal-fill activity. The purpose (the “what”) is typically described first, followed by the

need statement (the “why”). When the project is inherently a removal-fill activity (e.g., a

streambank stabilization project), the need for some level of removal-fill activity may be

self-evident. When the removal-fill activity is ancillary to the project purpose (e.g.,

wetland fill to create a commercial development), the need for the removal-fill activity

will likely not be evident without further analysis.

Purpose

The purpose statements are critical because they become the foundation of the

alternatives analysis. Good purpose statements help define the reasonable range of

alternatives to be considered. The purpose becomes a key criterion to determining

which alternatives are practicable and which are not. Why? Because an alternative that

does not substantially meet the overall project purpose is not a practicable alternative.

Purpose statements should not be overly narrow or too broad. The problem with too

narrow is it precludes any other alternative but the selected one. The problem with too

broad is it creates too many alternatives. Consider the following examples:

• A too-narrow purpose statement: Construct 25 single family homes on 5 acres at

1313 Mockingbird Lane, in Marshland, OR. This is a statement of the proposed

project, not a purpose statement. The problem with this statement is that it

excludes any other alternatives from being considered.

• A too-broad purpose statement: Build new homes. The range of alternatives that

could meet this statement is virtually endless.

E-3

• An appropriate purpose statement: Construct a 25-unit residential project to meet

demand for entry-level workforce housing in Marshland, OR.

Good purpose statements put sideboards on the range of alternatives to be considered

without unduly constraining reasonable alternatives.

Another way that purpose statements define the scope and range of alternatives is by

clearly defining the nature of the operation. For example, consider the following purpose

statement: Construct a food-processing factory. It seems this operation could be done

on any suitably zoned land. Now consider a more clearly articulated purpose statement:

Construct an unloading and processing factory for fresh-caught seafood. This is clearly

a marine-dependent use that suggests limiting alternatives to those that are on the

waterfront.

Need

DSL does not evaluate the need for a project, but

rather the public need for the proposed removal-

fill activity to accomplish the project. Are there

ways to accomplish the project without any

removal-fill action? If no, are there ways to

accomplish the project with a lesser amount of

removal-fill or otherwise in ways that minimize

adverse effects on waters of this state? These

questions should be evaluated and answered by the alternatives analysis.

Unless the entire project is the removal-fill activity, the removal-fill activity will typically

be ancillary to accomplishing the project purpose. In these cases, there will not be a

public need for the removal-fill, per se. There may, however, be social, economic and

other public benefits resulting from the proposed removal-fill since it will facilitate project

development. Thus, an application may identify no public need for the removal-fill but

may still describe public benefits that will be derived from the removal-fill. Removal-Fill

Law does not require that all removal-fill permit applications demonstrate a public need,

but DSL staff will consider and weigh any such identified public needs or benefits in

permit decision-making.

Note that a compatible zoning designation does not, by itself, constitute a justification of

need for a proposed removal-fill action. While a community’s land use designations are

based on long-term projections of need for various land use types, they are generally

insufficient to solely justify a project or site-specific need for removal-fill activity.

Project Criteria and Objectives

The applicant should use specific project criteria when considering how and where to

build a project. The applicant’s task is to get those criteria clearly articulated so that the

practicability of various alternatives may be equally assessed.

As directed by the Removal-Fill Law,

DSL may accept and rely upon a

public body’s findings as to local

public need. However, such

applicants must still consider

alternatives with potentially lesser

impact

E-4

Whenever possible, project criteria should be quantitative. For example, project criteria

might include:

• The ability of the alternative to substantially accomplish the project purpose

• Physical site suitability factors: parcel size, shape, slope, soil characteristic

requirements, natural resources, etc.

• Availability of appropriately sized infrastructure: power, water flow, wastewater

capacity, highway access, etc.

• Logistical: needed proximity to target labor force, suppliers, shipping port or

airport

• Local land use consistency

• Other regulatory limitations

Range of Alternatives

Once the project proponent clearly articulates the purpose for the project, alternatives

can be explored to meet the project criteria and objectives. The range of alternatives

should consider, depending on the type of project and magnitude of impact, the

following: alternative locations, alternative layouts and configurations, and alternative

construction methods.

Alternative Project Locations

Are there other project locations available to the applicant that can substantially meet

the purpose and project criteria with fewer or no adverse impacts to waters of this state?

Some projects are site-specific, thus eliminating the need to consider alternative

locations, e.g., repair of an existing structure already located in a wetland or waterway.

In general, the following project types should include alternative site consideration:

• Residential, commercial and industrial developments

• Transportation projects that involve new crossings

• New recreational structures such as boat ramps and trails

• Gravel extraction

• New municipal utilities (e.g., water or wastewater facilities, substations)

In general, it is not relevant to consider alternative sites for the following project types:

• Bank stabilization

• Replacement or improvement of existing in-water structures

• Transportation projects that involve realignment at a specific location for safety or

other reasons

• Voluntary restoration projects

• Maintenance dredging; however, it is appropriate to consider alternative sites for

the disposal of the dredge material

The following information should be included in the application:

• The identification of alternative project locations that were considered during the

site selection process

E-5

• Why the alternative locations were dismissed with respect to cost, existing

technology, logistics and project-specific criteria (see “Evaluation of Alternatives”)

• If no alternative project locations were considered, the application should indicate

that and why

Alternative Site Layouts or Configurations

Can re-orientation or re-configuration of the basic components of the project provide for

fewer or no impact to waters of this state? If so, consideration should be given to an

alternative layout. In general, the following project types should include alternative

layout or configuration consideration:

• Residential, commercial and industrial developments

• Transportation projects that involve new crossings or re-alignment of existing

structures

• New recreational structures such as boat ramps and trails

• Gravel extraction, especially as it relates to removal area access

• New or existing docks and piling placement

• Utility alignments

In general, it is not relevant to consider alternative site layouts or configurations for the

following project types:

• Existing transportation structure replacement, widening or expansion

• Bank stabilization, unless the area of treatment can be reduced

• Voluntary restoration projects

The following information should be included in the application:

Avoidance and minimization that prioritizes aquatic resources exhibiting characteristics

of importance, for example:

• High function, value and/or scores resulting from functions and values

assessment

• Aquatic resources that are difficult to replace

• Aquatic Resources of Special Concern

• Aquatic resources that will incur large temporal losses if impacted (e.g., forested

wetlands)

• Designated locally significant wetlands

• Wetlands associated with water quality impaired (e.g., 303d listed) streams

• Wetlands providing hydrologic connectivity between other wetlands

• Wetlands providing habitat connectivity between other important adjacent

habitats

• Aquatic resources with high ODFW habitat classification (rating of 1 or 2)

• Tidal wetlands or waters

• Aquatic resources of high value as identified by another natural resource agency

or conservation entity

• Aquatic resources containing rare species

E-6

Consideration and discussion of the long-term viability of avoided aquatic resources on

the site, for example:

• Effect of new stressors on avoided wetlands

• Likelihood of increased human intrusion/degradation/”maintenance”

• Likelihood of water quality impairment from surrounding development

• Connectivity to other habitats (degree of isolation)

• Degree of structure and edge simplification

• Degree of habitat fragmentation

• Buffers from adjacent conflicting uses

• Opportunity for stewardship

Alternative Construction Methods

Are there construction methods or designs that would have lesser impacts? In general,

applications for all types of projects should include consideration of alternative methods.

This is particularly important for the following project types:

• Bank stabilization, minimizing treatment area and/or using bio-engineering

• Existing in-water structure replacement or improvement, including transportation

structures, boat ramps, trails

• Maintenance dredging

• Gravel extraction

With the exception of voluntary restoration and bank stabilization projects, all

applications should include a no-impact alternative and at least one reasonable

alternative with less impact than that of the preferred site. Beyond that, the project’s

purpose and the nature of the proposed impact are the defining factors. Evaluation of

the no-build alternative may be appropriate when written findings are required for the

permit decision because statute requires DSL to make a finding as to the economic cost

to the public if the project is not accomplished. In general, however, a no-build

alternative is not an appropriate substitute for providing realistic alternatives to avoid

and minimize impacts.

Evaluation of Alternatives

The last step of the alternatives analysis is to evaluate all the alternatives against the

project-specific criteria to identify the practicable alternative(s) with the least impact. The

removal-fill permit application should clearly document why the preferred option was

selected and why each of the other options was dismissed.

The following information should be included in the application:

• How each alternative measures up to the established project criteria. This

information is often best displayed in a matrix format.

• The project criteria should be consistently applied to all of the alternatives.

• Reasonable conclusion(s) based on the evaluation.

The following examples do not, by themselves, constitute reasonable rationale for

dismissing an alternative:

E-7

• The layout is not consistent with the local jurisdiction’s transportation system

plan. Many times local governments lay out a road grid without the baseline

information to consider the location of waterways and wetlands. Thus, avoidance

and minimization of impacts was not considered in the development of the

transportation plan.

• The number of lots is the minimum required by local zoning. Many times,

variances to density requirements can be obtained in order to avoid and minimize

impacts.

• A reduced number of lots won’t pencil out. Project cost is not a paramount

consideration for practicability.

Generally, the level of analysis in the alternatives analysis should be commensurate

with the nature and the size of impact; however, there are no quantified thresholds in

Administrative Rule. If the project involves impacts to aquatic resources with

characteristics of “importance” (see examples above), a more detailed and careful

analysis is warranted.

Special Considerations for the Alternatives Analysis

Mitigation Considerations

The alternatives analysis process is separate from compensatory mitigation. The

suitability of mitigation is only considered after the practicable, least impacting

alternative has been identified through the alternatives analysis.

Industrial, Commercial and Residential Subdivision Projects

It is important for DSL to know when a proposed project is being developed for a

specific tenant or in advance of a tenant because it changes the nature of the

avoidance/minimization conversation. When there is a known user(s), avoidance,

minimization and alternatives analysis considerations can be made based on what the

purpose, needs and flexibilities are for that specific user.

When tenants/end users are not known, then those considerations for avoidance,

minimization and the alternatives analysis must be made from a different, broader

perspective. In this case, the analysis should look at:

• What local or regional market forces are driving/justifying the lot sizes and

configurations for the development type being proposed?

• What local land use requirements are constraining the development of the site?

• What are the opportunities from the master or total site plan perspective to work

around important aquatic resource features?

DSL can authorize removal-fill without knowing the end user, but the applicant must

understand that it may result in having to be more flexible with the site plan, and

justifying necessary impacts using broader community and market factors.

E-8

Community Comprehensive Plans and Zoning

A factor that makes the alternatives analysis process more complicated in Oregon is the

statewide land use planning program. As part of the comprehensive plan process,

communities have to provide a 20-year supply of land for commercial, residential and

industrial uses. The designation of urban growth boundaries and urban land uses may

give communities and property owners the expectation that appropriately zoned lands

will someday develop in a way that fulfills the community’s adopted vision established in

the comprehensive plan. Nonetheless, local land use planning and zoning do not

preclude the applicant’s requirement to consider project alternatives with lesser impacts

on wetlands and waterways.

Appendix F: Aquatic Resources of Special Concern

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.

Impacts to ARSCs do not qualify for many of the exceptions in rule that promote

permit application streamlining, and mitigation for unavoidable impacts must

involve the same ARSC. Mitigation projects that target ARSCs may qualify for

out-of-kind replacement for impacts if the ARSC is a priority recognized in that

watershed. ARSCs include:

Multiple waters types

Cold Water Habitat includes two designations as defined by Oregon Department

of Environmental Quality:

Core Cold Water Habitat are waters expected to maintain temperatures within

the range generally considered optimal for salmon and steelhead rearing, or that

are suitable for bull trout migration, foraging and sub-adult rearing that occurs

during the summer (OAR 340-041-0002 [13]). Waters with a seven-day Average

Maximum temperature ≤16°C (~61°F) are considered Core Cold Water Habitat,

which have been mapped by DEQ and are available on the Mitigation Planning

Map Viewer.

Cold Water Refugia are those portions of a water body where or times during the

diel temperature cycle when the water temperature is at least 2°C (3.6°F) colder

than the daily maximum temperature of the adjacent well mixed flow of the water

body (OAR 340-041-0002 [10]).

Rivers & Streams

Off-Channel Features- bodies of water adjacent to a main stream or river

channel that have surface water connections to the main river channel at

summer discharge levels.

Alcoves: water bodies that maintain a downstream connection to the

main channel at summer low flow but have no upstream connection during

low flow.

Side Channels: flowing water bodies with clearly identifiable upstream

and downstream connections to the main channel.

Estuary & Marine

Eelgrass Beds- beds of the submerged aquatic plant, Zostera marina, occur in

intertidal and shallow subtidal areas of estuaries and bays where substrate,

turbulence, and salinity conditions fit its range of tolerance. Eelgrass beds are

recognized as extremely productive habitats providing food, shelter, and velocity

refuge for fish, shellfish, and invertebrates, particularly in their juvenile stages.

Eelgrass is a preferred spawning substrate for herring, and the leaves are eaten

by migrating geese. Spreading rhizomes of eelgrass stabilize sediment and

capture nutrients. Z. marina beds may also contain the non-native eelgrass,

Zostera japonica, which provides similar functions. The density of eelgrass beds

is naturally variable from year to year. To identify the bed boundary, proceed in a

linear direction and find the last shoot that is within 1 meter of an adjacent shoot

along that transect. The bed boundary (edge) is defined as the point 0.5 meter

past that last shoot, in recognition of the average length of the roots and

rhizomes extending from an individual shoot.

Kelp Beds: beds of a bull kelp (Nereocystis luetkeana), or other macroalgae that

generally grow from the seafloor to the ocean surface. Kelp beds grow on rocky

substrate in shallow subtidal areas between 5 and 25 meters deep. Kelp is

anchored to rocks by a holdfast, and the canopy is kept afloat by gas-filled

bladders in the blades. Kelp beds provide food and structure important to many

marine species. Kelp beds are relatively scarce habitats in Oregon’s waters,

covering less than one percent of the nearshore area. The strip of coast from

Cape Arago south contains approximately 92 percent of Oregon’s kelp beds.

Wooded Tidal Wetlands- a wetland in which trees and shrubs have an aerial

cover of 30% or more, and that is inundated at least once annually by tides. The

plant species may include Sitka spruce, crabapple, or willows. Because tidal

swamps occur at the upper edge of the estuary, they were readily logged and

converted to agriculture, and therefore are one of the wetland types most

disproportionately lost.

Wetlands

Alkali Wetlands and Lakes- these wetlands or seasonal waters in Eastern

Oregon include playas or “salt flats”, and alkaline lakes with saline or alkaline

soils and fluctuating water levels. Vegetation is adapted to saline or alkaline

conditions. They may support large populations of plants and animals found

nowhere else in arid regions, and in Oregon they are particularly well known as

breeding or foraging sites for vast quantities of migrating birds.

Alkali wetlands and lakes that support S1 or S2 alkali wetland plant communities,

as identified by the Oregon Heritage Program, will be considered an Aquatic

Resources of Special Concern by the Department. Oregon Explorer’s Wetlands

topic page Alkaline Wetlands identifies the following communities and provides

links to more information:

1. Allenrolfea occidentalis Wet Shrubland Iodine bush

2. Artemisia cana ssp. bolanderi / Eleocharis palustris Wet Shrubland (Silver

sagebrush / common spikerush)

3. Artemisia cana (ssp. bolanderi, ssp. viscidula) / Leymus cinereus Wet

Shrubland (Silver sagebrush / giant wildrye)

4. Leymus cinereus Bottomland Wet Meadow (Giant wildrye)

5. Leymus triticoides - Poa secunda Wet Meadow (Creeping wildrye - alkali

bluegrass)

6. Lepidium davisii Playa [Provisional] (Davis pepperweed) (ODA species

profile)

7. Puccinellia lemmonii - Poa secunda Wet Meadow Vegetation (Lemmon's

alkali grass - Curly bluegrass)

8. Sarcobatus vermiculatus / Leymus cinereus Wet Shrubland (Black

greasewood / giant wildrye playa)

9. Spartina gracilis Wet Meadow (Alkali cordgrass)

10. Spartina pectinata Western Wet Meadow (Prairie cordgrass)

Bogs- wetlands characterized by constant saturation, accumulation of peat, low

nutrient availability, acidic soil (pH <5.5), and vegetation that tolerates these

conditions. Bogs typically have sphagnum moss, shrubs in the heath family, and

if present, evergreen trees tend to be stunted. Some rare species have adapted

to these unusual habitats. Bogs form so slowly they cannot easily be replaced.

Fens- peat soil wetlands with mineral-rich groundwater or surface water sources,

and soil pH generally higher than 5.5. Fens occur in landscape depressions such

as interdunal swales, headwater basins, floodplains, and landslide slumps, and

are normally small in area. Fens may support rare plants. Like bogs, fens form

slowly in areas with unique hydrology and cannot easily be replaced.

Hot Springs- a wetland where discharging groundwater in summer is >10°F

warmer than the expected water temperature.

Interdunal Wetlands- wetlands in the dunal system along the Oregon coast may

occur in the deflation plains, depressions, swales or low areas. They are typically

seasonally inundated, usually without a naturally occurring inlet or outlet, and

often with significant cover of the following native plant species: Carex obnupta,

Argentina egedii, Juncus lesueurii, J. nevadensis, J. falcatus, Sisyrinchium

californicum and/or Salix hookeriana.

Mature Forested Wetlands- wetlands in which trees have an aerial cover of

30% or more and either the average diameter at breast height of a minimum of

10 trees exceeds 18 inches, the average age of trees exceeds 80 years, or there

are >5 trees/acre with diameter >32 inches.

Ultramafic Soil Wetlands- low-elevation wetlands occurring mainly in

southwestern Oregon, usually with a sponge-like organic soil layer, in an area

with exposed serpentine or peridotite rock, and/or in soils with very low Ca:Mg

ratios.

Vernal Pools- seasonally inundated depressions underlain by an impermeable

claypan or hardpan layer. A vernal pool is usually a closed depression without a

naturally occurring inlet or outlet that ponds water in the cool, low evaporation

periods of winter and spring in regions with cool moist winters and dries out

during the hot dry summers.

Vernal Pools (Willamette Valley): a seasonally inundated wetland,

underlain by hardpan or

claypan, with hummocky micro-relief, usually without a naturally-occurring

inlet or outlet, and with native plant species distinctly different from those

in slightly higher areas, and often including the following plant species:

Downingia elegans, Isoetes nuttallii, Triteleia hyacinthina, Eleocharis spp.,

Eryngium petiolatum, Plagiobothrys figuratus, Plagiobothrys scouleri,

Grindelia nana, Veronica peregrina, Lasthenia glaberrima , Cicendia

quadrangularis, Gnaphalium palustre, and/or Callitriche spp.

Vernal Pools (Medford area): a seasonally inundated acidic wetland,

underlain by hardpan, with hummocky micro-relief, usually without a

naturally-occurring inlet or outlet, and having concentric rings of similar

native vegetation, often including the following plant species: Downingia

vina, Isoetes nuttalli, Pilularia americana, Triteleia hyacinthina, Eleocharis

spp., Eryngium petiolatum, Plagiobothrys brachteatus, Plagiobothrys

scouleri, Grindelia nana, Veronica peregrina, Alopecurus saccatus,

Lasthenia californica, Deschampsia danthonioides, and/or Callitriche spp.

Vernal Pools (Modoc basalt & Columbia Plateau): a seasonally

inundated wetland, usually without a naturally occurring inlet or outlet,

located on shallow basalt bedrock and often having the following plant

species: Blennosperma nanum, Camassia quamash, Epilobium

densiflorum, Callitriche marginata, Cicendia quadrangularis, Eryngium

vaseyi, Psilocarphus brevissimus, and/or Sedella pumila.

Wet Prairies – These wetlands occur on valley floors where clay-rich soils create

a perched water table. Wet prairies usually dry out by late spring, although

depressions may retain water longer. They require periodic fire or mowing to

keep shrubs and trees from invading. Native herbaceous plants found in wet

prairies may include Deschampsia caespitosa, Danthonia californica, Camassia

quamash, Triteleia hyacinthina, Carex densa, C. aperta, and C. unilateralis; but

even in relatively undisturbed wet prairies there may be significant cover on non-

native plants. In the Willamette Valley, only 1% of historic wet prairies remain,

and these remnants are key to dependent species such as grassland birds and

several federally listed rare plants. Restoration of former wet prairies is

encouraged as a watershed priority.

Appendix G: References

References

Adamus, P.R. 2006. Hydrogeomorphic (HGM) Assessment Guidebook for Tidal

Wetlands of the Oregon Coast, Part 1: Rapid Assessment Method. Produced

for the Coos Watershed Association, Oregon Department of State Lands, and

U.S.E.P.A.-Region 10. Charleston, OR: Coos Watershed Association.

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.

Bennett, M. and G. Ahrens 2007. A Guide to Riparian Tree Planting in Southwest

Oregon. EM 8893-E, Oregon State University Extension Service. 32p.

Bentrup, G. 2008. Conservation buffers: design guidelines for buffers, corridors,

and greenways. Gen. Tech. Rep. SRS-109. Asheville, NC: Department of

Agriculture, Forest Service, Southern Research Station. 110 p.

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.

Hennings, L. and J. Soll, 2010. Wildlife corridors and permeability: A literature

review. Oregon Metro, Portland Oregon. 103 p.

Jurries, D. 2003. Biofilters for Storm Water Discharge Pollution Removal. Oregon

Department of Environmental Quality, DEQ Northwest Region Document. 56

Oregon Department of State Lands 2001. Guidebook for Hydrogeomorphic

(HGM)-based Assessment of Oregon Wetland and Riparian Sites: Statewide

Classification and Profiles. Salem, OR.

Marshall, J. 2007. Guidance for Vegetation Planning and Monitoring in Western

Oregon Wetlands and Riparian Areas: Using Reference Sites to Help Plant

and Evaluate Vegetation Performance of Mitigation Sites.

Pendegrass, Kathy. 2005. Species Compositions for Willamette Valley Wet

Prairie Types. US Fish and Wildlife Service.

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