OAR 141-085-0565: Department Determinations and Considerations in Evaluating Individual Permit Applications

(1) Departmental Final Review . The Department will evaluate the information provided in the application, conduct its own investigation, and consider the comments submitted during the public review process to determine whether or not to issue an individual removal-fill permit. (2) Effective Date of Review Standards . The Department may consider only standards and criteria in effect on the date the Department receives the complete application or renewal request. (3) Department Determinations . The Department will issue a permit if it determines the project described in the application: (a) Has independent utility; (b) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 to 196.990; and (c) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation, when the project is on state-owned lands. (4) Department Considerations . In determining whether to issue a permit, the Department will consider all of the following: (a) 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 applicant for a permit is a pub lic body, the Department may accept and rely upon the public body’s findings as to local public need and local public benefit; (b) The economic cost to the public if the proposed fill or removal is not accomplished; (c) The availability of alternatives to the project for which the fill or removal is proposed; (d) The availability of alternative sites for the proposed fill or removal; (e) Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety; (f) Whether 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; (g) 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; (h) Whether the proposed fill or removal is for stream bank protection; and (i) Whether 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. (5) Alternatives Analysis . The Department will issue a permit only upon the Department's determination that a fill or removal project is consistent with the protection, conservation and best use of the water resources of this state and would not unreasonably interfere with the preservation of the use of the waters of this state for navigation, fishing and public recreation. The Department will analyze a proposed project using the criteria set forth in the determinations and considerations in Sections (3) and (4) above (OAR 141-085-0565). The applicant bears the burden of providing the Department with all information necessary to make this determination. (6) Fills in an Estuary for Non-Water Dependent Use . A “substantial fill” in an estuary is any amount of fill regulated by the Department. No authorizations will be issued for a substantial fill in an estuary for a non-water dependent use unless all of the following apply: (a) The fill is for a public use; (b) The fill satisfies a public need that outweighs the harm, if any, to navigation, fisheries and recreation; and (c) The removal-fill meets all other review standards. (7) Written Findings . In the following cases, the Department will prepare written findings to document an individual removal-fill permit decision: (a) Permit denial; (b) Permanent fill of two acres or more in wetlands; (c) Fill in estuaries (except cable crossings, pipelines, or bridge construction); (d) Removal from estuaries of more than 10,000 cubic yards of material (except for maintenance dredging); (e) Placement of greater than 2,500 cubic yards of riprap in coastal streams or estuaries; (f) Removal-fill in the Oregon Territorial Sea in accordance with Statewide Planning Goal 19-Ocean Resources; and (g) Any permit decision that is contrary to the final decision recommendation of a state agency. (8) Marine Reserves and Marine Protected Areas . The Department will only authorize a removal-fill activity within an area designated by the State Land Board as a marine reserve or a marine protected area if the removal-fill activity is necessary to study, monitor, evaluate, enforce or protect or otherwise further the studying, monitoring, enforcement and protection of the reserve or marine protected area. (9) Ocean Renewable Energy Facilities. The Department will only authorize a removal-fill activity for an ocean renewable energy facility that complies with the criteria described in applicable parts of the Territorial Sea Plan.