Removal-Fill Program Jurisdictional Waters, Regulated Activities and

Agricultural Exemptions

Eric Metz and Kirk JarvieOperations Division--Aquatic Resources Management

Department of State Lands

Wetland Regulation Work GroupHouse 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*

• Tidal bays and estuaries• Rivers• Perennial streams• Intermittent streams• Lakes and ponds• Wetlands• The Pacific Ocean (out 3 miles)*Except ephemeral streams

Some artificially created waters

• Reservoirs• Wetlands/ponds that are

greater than one 1-acre and created in jurisdictional waters

• Some ditches if they are created in part or whole in jurisdictional waters, or, created from uplands and contain food and game fish and have free and open connection

• Designated Mitigation sites

Jurisdictional waters & boundaries(OAR 141-085-0515—jurisdiction by type of water)

5

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 and Intermittent Streams, Lakes and Ponds

Ordinary High Water Line

(OHWL)

Wetlands Wetland boundary

Reservoirs Normal operating pool level or

upper edge of adjacent wetland

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

ReservoirNormal 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 inorganic material by artificial means

Removal—Taking inorganic and LWD 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 farm/stock ponds on EFU

Maintenance of existing farm roads on EFU

Subsurface drainage by deep ripping, tiling or moling, on converted wetlands

Agricultural activities in ESH <50 CY

Drainage ditch maintenance

Push-up dams

Normal farming/ranching on converted wetlands:

➢Plowing

➢Grazing

➢ Seeding

➢Planting

➢Cultivating

➢Conventional crop rotation

➢Harvesting

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

➢ Tidegates In-kind replacement of an existing 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

Thanks for your attention!

Contact informationDepartment of State Lands775 Summer St. NE, Suite 100Salem, OR 97301-1279eric.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

Crown Point at Columbia River Gorge