Removal-Fill Program Jurisdictional Waters, Regulated Activities and Agricultural Exemptions Eric Metz and Kirk Jarvie Operations Division--Aquatic Resources Management Department of State Lands Wetland Regulation Work Group House Committee on Agriculture and Natural Resources Room 350, State Capitol-July 9, 2018
Three part test for when permit is required: 1. Is the activity a “water of the state” 2. Does the activity exceed the volume threshold? a. 50 cubic yards in most cases b. Any amount in some cases 3. Is the proposed project a regulated activity type? (There are many exempt activities)
What are “waters of the state?” Definitions (ORS 196.800(14)) and (OAR 141-085-0515)
Waters of the state include: (ORS 196.800(14)) and OAR 141-085-0515) All naturally occurring waters* Some artificially created waters • • Tidal bays and estuaries Reservoirs • • Rivers Wetlands/ponds that are greater than one 1-acre and • Perennial streams created in jurisdictional waters • Intermittent streams • Some ditches if they are • Lakes and ponds created in part or whole in • Wetlands jurisdictional waters, or, • The Pacific Ocean (out 3 miles) created from uplands and contain food and game fish *Except ephemeral streams and have free and open connection • Designated Mitigation sites
Jurisdictional waters & boundaries (OAR 141-085-0515 — jurisdiction by type of water) Pacific Ocean Extreme low tide to 3 miles out Highest Measured Tide (HMT) or Tidal Bays, Tidal Rivers and upper edge of wetland Estuaries Rivers, Perennial and Ordinary High Water Line Intermittent Streams, Lakes (OHWL) and Ponds Wetlands Wetland boundary Reservoirs Normal operating pool level or upper edge of adjacent wetland 5
Artificially created wetlands or ponds constructed entirely from upland that are not jurisdictional (OAR 141-085-0515 — jurisdiction by type of water) • Wastewater treatment • Settling of sediment • Stormwater detention and/or treatment • Agricultural crop irrigation or stock watering • Fire suppression • Cooling water • Surface mining, even if the site is managed for interim wetlands functions and values • Log storage • Aesthetic purposes (e.g., golf course ponds)
Ditches that are not jurisdictional (OAR 141-085-0515 — jurisdiction by type of water) • Irrigation Ditches – Operated and maintained for irrigation; and – Dewatered for the non-irrigation season except for stock water runs, fire suppression or storm water collection • Certain Roadside and Railroad Ditches – Ten feet wide or less at OHWL; – Artificially created from upland or wetlands; – Not adjacent, connected or contiguous with wetlands; and – Do not contain food or game fish
Tidal waters with and without adjacent wetlands
Ordinary high water line usually determined in the field based on signs of inundation
How are wetlands identified? • Wetland determination — Only assesses presence/absence of wetland conditions • Wetland delineation — Identifies the boundaries of wetland within a study area – 1987 US Army Corps of Engineers Wetland Delineation Manual – Regional supplements – Typically performed by consultants in the private sector and approved by DSL
Reservoir example--Detroit Dam
Reservoir Normal operating pool or upper edge of adjacent wetland (source: Journal of Hydrologic Engineering )
Regulated activities (ORS 196.800 and OAR 141-085-0520 — Jurisdiction by volume of material) Fill — Depositing > 50 CY organic or Removal — Taking inorganic and LWD inorganic material by artificial means or moving by artificial means > 50 CY
Volume thresholds 50 cubic yards or more (additive) of removal and/or fill in waters of the state: ➢ Fill is organic or inorganic material ➢ Removal is inorganic and large woody debris Any amount (except prospecting) — of removal and/or fill in designated: ➢ State Scenic Waterways ➢ Essential Indigenous Anadromous Salmonid Habitat Mitigation sites
Measuring removal volumes on a stream bank excavation
Why were the agricultural exemptions put in place? • The exemptions were put in place to minimize the affect of wetlands regulation on farming and ranching • It was recognized that most farming and ranching occurs on “converted” wetlands; not pristine wetlands • These activities generally do not permanently convert wetland to upland
What are converted wetlands? (ORS 196.905(6) and OAR 141-085-0510(21)) Converted Wetlands” means agriculturally managed wetlands that, on or before June 30, 1989, were brought into commercial agricultural production by diking, draining, leveling, filling or any similar hydrologic manipulation and by removal or manipulation of natural vegetation, and that are managed for commercial agricultural purposes. “Converted wetlands” does not include any stream, slough, ditched creek, spring, lake or any other waters of this state that are located within or adjacent to a converted wetland area.
When do the agricultural exemptions apply? Step 1 — Is the water jurisdictional? Step 2 — Will the project trigger the regulatory thresholds? Step 3 — Do any of the exemptions apply? Step 4 — If yes then: (a) If one or more exemptions apply then the project is determined to be exempt, in whole or in part (b) If not, the activity requires a GA waiver or authorization
Exemptions specific to agricultural activities (ORS 196.905 and OAR 141-085-0535) Drainage/maintenance of Normal farming/ranching on farm/stock ponds on EFU converted wetlands: Maintenance of existing farm ➢ Plowing roads on EFU ➢ Grazing Subsurface drainage by deep ➢ Seeding ripping, tiling or moling, on ➢ Planting converted wetlands ➢ Cultivating Agricultural activities in ESH ➢ Conventional crop <50 CY rotation Drainage ditch maintenance ➢ Harvesting Push-up dams
How does the agricultural drainage ditch exemption work? ➢ Many drainage channels were created from naturally occurring streams ➢ Agricultural drainage ditches can be maintained under OAR 141-085-0535(7)and includes disposal of dredged material in a thin layer on converted wetlands ➢ Disposal may not convert wetland to upland ➢ “Ditch” means a manmade water conveyance channel (OAR 141-085-0510(28))
Maintenance/reconstruction of certain agricultural- related activities such as water control structures (ORS 196.905 and OAR 141-085-0530(4) and (8)) ➢ Drainage ditches ➢ Irrigation ditches ➢ Tile drain systems ➢ Culverts ➢ Dikes ➢ Dams ➢ Levees ➢ Groins ➢ Riprap In-kind replacement of an existing ➢ Tidegates culvert in same footprint
Conditions for maintenance or reconstruction exemptions • The project meets the definition of maintenance; or • The project meets the definition of reconstruction; • The structure was serviceable within the past five years; and • The maintenance or reconstruction would not significantly adversely affect wetlands or other waters to a greater extent than original construction
Change in point of diversion (OAR 141-085-0530(8)) Exempt if: • Necessitated by a change in the location of the surface water; and • Authorized by the Oregon Water Resources Department.
Push-up dams (OAR 141-085-0535(8)) • 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; and, – 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
Than hanks ks for r yo your ur attention! tention! Crown Point at Columbia River Gorge Contact information Department of State Lands 775 Summer St. NE, Suite 100 Salem, OR 97301-1279 eric.metz@dsl.state.or.us 503-986-5266 kirk.jarvie@dsl.state.or.us 503-986-5320 Eric D. Metz, PWS, Planning & Policy Manager Kirk D. Jarvie, Southern Field Operations Manager
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