June 18, 2014

Recent Developments Related to Oregon Wetlands


By Steve Shropshire

Division of State Lands Extends Comment Period for Removal-Fill Rules

On June 18, 2002, the Division of State Lands announced that it would be reopening public comment on draft rules related to the state's Removal-Fill Law. The rules had originally been scheduled for adoption at the June 11 State Land Board meeting. Because of extensive public comment at the meeting, DSL decided to issue new draft rules and extend the comment period until July 31st.

The proposed rules represent a sweeping revision of the administrative rules governing the removal or discharge of material into the waters of the State of Oregon. Such activities generally require a permit from DSL, and often from the United States Army Corps of Engineers. The purpose of the revisions is to simplify the existing rules and to make the rules consistent with recent legislation.

To accomplish this, the rules establish a clear process for removal-fill applications. Under the new rules, DSL must determine if an application is complete within 40 days of receipt. Within 90 days of receiving a complete application, DSL must issue a final decision. New permit extension criteria are also proposed.

In addition to these procedural changes, the rules would make several substantive changes, including:

  • Clarification of what activities come under Division jurisdiction.
  • Simplification of civil penalty formulas.
  • Revision of criteria for issuing Emergency Letters of Authorization.
  • Definition of criteria required to establish standing to request a hearing on permit decisions.
  • Revisions to General Authorizations for smaller projects.

Copies of the most recent draft of the Removal-Fill rules should be available on the DSL website at: http://statelands.dsl.state.or.us/ after July 1, 2002. Comments will be accepted by mail, fax, or e-mail until July 31, 2002. DSL will hold a public hearing on July 31, 2002 in Salem to consider public comment on the draft rules. DSL then anticipates adopting the rules in August, with a mid-September effective date. Until the new rules become effective, the existing rules will govern any Removal-Fill applications.

United States Supreme Court Agrees to Hear Appeal of Wetlands Case

On June 10, 2002, the United States Supreme Court agreed to hear an appeal of a wetlands case involving the regulation of "deep ripping," a farming activity often used to prepare agricultural lands for vineyards or orchards. The case involves the Ninth Circuit Court of Appeals 2001 decision in Borden Ranch Partnership v. U.S. Army Corps of Engineers. In that case, the court found a California ranch owner violated the Clean Water Act by using a deep-penetrating plow to puncture through a dense soil layer underlying wetlands on the ranch. On appeal, the Supreme Court will be evaluating several issues including:

  • whether deep ripping constitutes a normal farming practice exempted from the permitting requirements of the Clean Water Act;
  • whether plowing results in the discharge of a pollutant (soil); and
  • whether a plow is a point source.

The decision in this case will ultimately determine whether deep ripping is an activity regulated by the U.S. Army Corps of Engineers across the country.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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