Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
purpose of this water classification system is to match the physical
characteristics and beneficial uses of a water body to a set of appropriate
protection measures.
(2) For the
purposes of applying appropriate protection measures, the State Forester shall
classify waters of the state as streams, wetlands, or lakes as described in
this rule.
(3) The State Forester
shall further classify streams according to their beneficial uses and size. The
department shall incorporate the Department of Fish and Wildlife findings
regarding fish use and perenniality into the department's reporting and
notification system consistent with sections (11) and (18) of this rule. The
department shall work with the Department of Fish and Wildlife to establish
procedures for incorporating such findings into the department's reporting and
notification system no later than December 31, 2023. The State Forester shall
classify domestic water use streams using information from the Water Resources
Department. For an operator to apply streamside protection, the State Forester
shall make this information publicly available in the department's reporting
and notification system.
(4) To
maintain a statewide data layer describing fish distribution and perenniality,
the State Forester shall provide Department of Fish and Wildlife information
regarding a water body's size and beneficial use.
(5) For purposes of protection, the State
Forester shall further classify streams into one of the following five
beneficial use categories, as defined in OAR 629-600-0100:
(a) Type F;
(b) Type SSBT;
(c) Type D;
(d) Type Np; or
(e) Type Ns.
(6) For purposes of classification, a stream
is considered to have domestic water use only if a water use permit has been
issued by the Oregon Water Resources Department.
(7) A channel is considered to have domestic
water use upstream of an intake for the distances indicated below:
(a) For domestic water use that is a
community water system (as defined under OAR 333-061-0020), Type D
classification shall initially apply to the length of stream that was
designated as Class I under the classification system that was in effect on
April 22, 1994, which is that shown on district water classification maps at
the time of adoption of this rule.
(b) For domestic water use that is not a
community water system, Type D classification shall be initially applied for
the shortest of the following distances:
(A)
The distance upstream of the intake to the farthest upstream point of summer
surface flow;
(B) Half the distance
from the intake to the drainage boundary; or
(C) 3,000 feet upstream of the
intake.
(c) Type D
classification shall apply to tributaries off the main channel as long as the
conditions of subsections (7)(a) or (b) of this rule apply.
(d) A representative of a community water
system or other domestic use water permit holder may request that the State
Forester designate additional lengths of channels upstream of a domestic water
intake or reservoir as Type D. The representative or permit holder must present
evidence that the additional stream protection is needed. The State Forester
will decide whether or not to extend Type D classification to these other
channels based on evidence presented by the requesting party showing that
protection measures associated with Type N classification would be insufficient
to prevent adverse detrimental temperature increases, turbidity increases, or
other adverse water quality changes at the domestic water use intake or
reservoir.
(e) The process and
criteria described in subsection (7)(a), and the criteria under section (7) of
this rule will be used to evaluate the extent of Type D classification for new
community water systems.
(f) The
State Forester will decide whether or not to extend the length of Type D
classification within 30 days of the presentation of
evidence.
(8) The
domestic water use classification may be waived by the State Forester at the
request of a landowner who is the sole domestic water use permit holder for an
intake and who owns all the land along upstream channels that would be affected
by the classification related to that intake. This waiver shall not affect the
classification related to downstream domestic water use intakes.
(9) A stream or lake will be considered to
have fish use if inhabited at any time of the year by anadromous or game fish
species or fish that are listed as threatened or endangered species under the
federal or state endangered species acts.
(10) The fish use classification does not
apply to waters where fish were introduced through a fish stocking permit that
includes documentation that the stream had no fish prior to stocking.
(11) For the purposes of classifying streams
for fish use, the State Forester shall use the procedures in this section:
(a) As of July 1, 2023, the State Forester
shall classify streams for fish use according to the fish distribution model
developed by using the Fransen (Brian R. Fransen, Steven D. Duke, L. Guy
McWethy, Jason K. Walter & Robert E. Bilby. 2006. A Logistic Regression
Model for Predicting the Upstream Extent of Fish Occurrence Based on
Geographical Information Systems Data, North American Journal of Fisheries
Management, 26:4, 960-975) or Penaluna (2022, in publication) models if
reviewed by the Department of Fish and Wildlife and is approved based on
findings that the model is equal or better than Franson 2006 upon publication.
The State Forester shall make the results of the fish use distribution model
publicly available in the department's reporting and notification
system.
(b) If the State Forester
has not incorporated Penaluna (2022, in publication) by July 1, 2023, then the
State Forester shall incorporate the fish use layer developed pursuant to
Penaluna (2022, in publication) after July 1, 2023, upon publication provided
the Department of Fish and Wildlife makes the findings required in (a) and
requests the modification. Otherwise, the State Forester shall replace the
model in (a) with an alternate fish use distribution model if developed
pursuant to the adaptive management process described in OAR 629-603-0000 through 629-603-0600, provided that any such model is first reviewed and
approved by the Department of Fish and Wildlife.
(c) The State Forester shall use field
surveys to correct the modeled fish distribution under the following
conditions:
(A) A field survey conducted prior
to May 1, 2023, and accepted by the department for purposes of informing
compliance with the forest practice rules shall be incorporated into the
department's reporting and notification system, provided that either:
(i) The survey is submitted to the Department
of Fish and Wildlife prior to January 1, 2023, and not disqualified by May 1,
2023, for failure to meet the criteria in the Private Forest Accord Report
(February 2, 2022); or
(ii) The
survey is submitted by the landowner or the department to the Department of
Fish and Wildlife after January 1, 2023, but no later than January 1, 2028, and
not disapproved by the Department of Fish and Wildlife within ninety days
following submission for failure to meet the criteria in the Private Forest
Accord Report (February 2, 2022).
(B) A field survey conducted prior to January
1, 2023 not yet accepted by the department for purposes of informing compliance
with the forest practice rules shall be incorporated into the department's
reporting and notification system, provided that either:
(i) The survey is submitted to the Department
of Fish and Wildlife prior to January 1, 2023 and not disqualified by May 1,
2023 for failure to meet the requirements of the survey protocol in effect as
of the date of the survey; or
(ii)
The survey is submitted by the landowner or the department to the Department of
Fish and Wildlife after January 1, 2023, but no later than January 1, 2028, and
not disapproved by the Department of Fish and Wildlife within ninety days
following submission for failure to meet the requirements of the survey
protocol in effect as of the date of the survey.
(C) A field survey conducted after May 1,
2023 shall be incorporated into the department's reporting and notification
system, provided that either:
(i) The survey
is submitted to the Department of Fish and Wildlife and not disqualified within
21 days following submission for failure to satisfy the Department of Fish and
Wildlife's protocols for fish use field surveys; or,
(ii) The survey is otherwise reviewed and
approved by the Department of Fish and Wildlife.
(D) A field survey submitted to the
Department of Fish and Wildlife pursuant to (11)(c)(A)(i) or (11)(c)(B)(i)
above, but disapproved after May 1, 2023 for failure to satisfy the relevant
criteria shall be removed from the department's reporting and notification
system, provided that an operator who submitted a notification in reliance on
the survey prior to its removal shall be allowed to continue to rely on such
survey for purposes of such notified forest operations.
(E) If the Department of Fish and Wildlife
does not approve a field survey submitted pursuant to (11)(c)(C)(i) within
twenty-one days for failure to meet the requirements of the survey protocol in
effect as of the date of the survey, the survey shall be removed from the
department's reporting and notification system. An operator who submitted a
notification in reliance on the survey prior to its removal shall be allowed to
continue to rely on such survey for purposes of such notified forest
operations. Where surveys conflict, the department will use the survey deemed
to have the higher level of confidence by the Department of Fish and Wildlife.
The selected survey shall control for purposes of the department's reporting
and notification system.
(d) For streams that were initially
classified as fish use based on the model, an operator may request that the
State Forester conduct a fish presence survey 12 to 24 months before an
operation's scheduled start date to verify the designation of fish use in
stream segments associated with the operation.
(A) The State Forester shall make a good
faith effort to conduct the requested surveys and shall prioritize requests
from landowners who do not have the financial or technical resources to conduct
the surveys themselves.
(B) As an
option, the landowner may conduct the fish presence survey as specified in
(e).
(C) If neither the landowner
nor the State Forester can conduct the survey before the operation begins, the
fish use classification based on the model shall apply.
(D) If a field survey is conducted by the
State Forester, the Department of Fish and Wildlife shall have a 21-day period
to review and approve or object to the field survey. If no objection occurs,
the survey shall be accepted and the fish use designation will be updated in
the department's notification and reporting system.
(e) To be used for stream classification
under this section, field surveys for fish use must be conducted according to
the protocol in "Surveying Forest Streams for Fish Use," published by the
Department of Forestry and the Department of Fish and Wildlife.
(f) If approved by the Department of Fish and
Wildlife, the State Forester may use other information to determine the
upstream extent of fish use.
(g) An
operator may request an exception to Type F stream classification above an
artificial obstruction to fish passage that is documented by field survey as
the end of fish use. The State Forester, in consultation with the Department of
Fish and Wildlife, shall grant the request after determining that the
artificial obstruction is likely to continue to prevent fish passage for a
period of time exceeding that needed to regrow trees to a size that would
provide key pieces of large wood.
(h) When an exception to Type F stream
classification is made above an artificial obstruction to fish passage in
accordance with (g), the State Forester shall classify the stream as either
Type D or Type N as appropriate and operators must apply the corresponding
vegetation retention requirements described in OAR 629-643-0100 through
629-643-0500.
(i) For the purposes
of ORS 215.730(1)(b)(C),
Type N streams are equivalent to "Class II streams."
(12) For the purposes of stream
classification, the State Forester, in consultation with Department of Fish and
Wildlife shall use the procedures in this section to determine if a stream has
fish use or both fish use and SSBT use.
(a)
Streams where the upstream extent of fish use is determined using field methods
that also observe SSBT use where those stream segments have not previously been
identified as having SSBT use, will be added to the Type SSBT classification in
accordance with the Data Standard and Update Protocol referenced in OAR
629-635-0200(13).
(b) For streams
where SSBT use is based on observations or habitat, and where that use exists
farther upstream than the upstream extent of fish use identified by field
methods, the State Forester shall use the farthest upstream segment with SSBT
use to reclassify the end of fish use.
(c) For streams where SSBT use is based on
observations or habitat, and where that use exists farther upstream than the
upstream extent of fish use identified by non-field methods, the State Forester
shall use the farthest upstream segment with SSBT use to reclassify the end of
fish use.
(d) For streams where
SSBT use is based on concurrence of professional opinion, and where that use
exists farther upstream than the upstream extent of fish use identified by
field methods, the State Forester shall use the farthest upstream segment with
fish use to reclassify the end of SSBT use.
(e) For streams where SSBT use is based on
concurrence of professional opinion, and where that use exists farther upstream
than the upstream extent of fish use identified by non-field methods, the State
Forester shall use the farthest upstream segment with SSBT use to reclassify
the end of fish use. The State Forester shall re-survey, using field methods,
for the upstream extent of fish use upon written request from a landowner whose
land immediately adjoins a Type SSBT stream segment described in this
subsection.
(f) A landowner may
provide evidence to the State Forester that clearly identifies a waterfall or
chute type of natural barrier to SSBT use based on field methods described in
(11). The State Forester shall evaluate that evidence and make a determination
on whether or not to adjust the extent of SSBT use within 30 days of
presentation of evidence.
(13) The State Forester will use the
standards and procedures in this section to determine if a stream is Type SSBT.
(a) The State Forester will initially
classify SSBT use stream segments based on the Fish Habitat Distribution
Database on July 1, 2017, excluding historical use stream segments and stream
segments identified using habitat evaluation based on modeling according to the
Oregon Fish Habitat Distribution Data Standard, Version 3.0, February 2015
(Data Standard) and Oregon Department of Fish and Wildlife Fish Habitat
Distribution Data Update Protocol, September 2005 (Update Protocol).
(b) When advised by the Department of Fish
and Wildlife that new or higher quality data are available on the distribution
of SSBT use, the State Forester will evaluate the need to reclassify SSBT use
stream segments. Otherwise, evaluation of new or higher quality data and
subsequent reclassification of SSBT use stream segments will occur at least
every four years.
(c) As needed,
the State Forester will reclassify SSBT use stream segments, except for stream
segments added based on concurrence of professional opinion as defined in the
Data Standard.
(d) The State
Forester will apply SSBT use stream segments to operations described in
notifications submitted after the date the stream segments are classified as
Type SSBT.
(e) If the Data Standard
or Stewardship Plan is revised substantively in any way, the State Forester and
the Board of Forestry will evaluate if changes to this rule are
required.
(f) Until the State
Forester and the Board of Forestry have reviewed and approved revisions to the
Data Standard or Stewardship Plan per subsection (13)(e), the State Forester
will not reclassify SSBT use stream segments based on information from the new
portions of the Department of Fish and Wildlife Data Standard or Update
Protocol.
(14) In
Eastern Oregon, the State Forester shall determine the classification of a Type
Np stream as lateral type Np stream or terminal type Np stream, as defined in
OAR 629-600-0100. The department's reporting and notification system will
identify small Type Np streams. Where the location of the modeled end changes
based on a valid field survey, as described in (18), then the State Forester
shall promptly reclassify upstream segments as lateral or terminal type Np
streams.
(15) For each of the five
beneficial use categories listed in (4), streams shall be categorized further
according to three size categories: large, medium, and small. The size
categories are based on average annual flow.
(a) Small streams have an average annual flow
of two cubic feet per second or less.
(b) Medium streams have an average annual
flow greater than two and less than 10 cubic feet per second.
(c) Large streams have an average annual flow
of 10 cubic feet per second or greater.
(16) The assignment of size categories to
streams on forestland will be done by the State Forester as follows:
(a) The State Forester will index average
annual flow to the upstream drainage area and average annual precipitation. The
methodology is described in Forest Practices Technical Guidance. The State
Forester shall calculate average annual flow for streams and publish the
appropriate size classes in stream classification maps within the department's
reporting and notification system.
(b) Actual measurements of average annual
flow may substitute for the calculated flows described in the Forest Practices
Technical Guidance.
(c) Any stream
with a drainage area less than 200 acres shall be assigned to the small stream
category regardless of the flow index calculated in
(15)(a).
(17) Wetlands
shall be classified further as indicated below:
(a) Significant wetlands, which are:
(A) Wetlands larger than 8 acres;
(B) Estuaries;
(C) Bogs; and
(D) Important springs in Eastern
Oregon.
(b)
Stream-associated wetlands that are less than 8 acres are classified according
to the stream with which they are connected.
(c) All other wetlands, including seeps and
springs are classified according to their size as either "other wetlands
greater than one-quarter acre" or "other wetlands less than one-quarter
acre."
(18) By July 1,
2023, the State Forester shall update all published maps and the department's
reporting and notification system to include flow duration for streams in
Western Oregon and Eastern Oregon. The State Forester shall maintain in the
department's reporting and notification system a map of perennial flow
utilizing the following:
(a) Phase 1 Initial
Mapping. The State Forester shall initially map perennial flow of Type N
Streams using U.S. Geological Survey NHD high resolution data. The NHD stream
layer may assist operational field surveys as described in OAR 629-643-0130 or
629-643-0143 but shall not provide for a modeled end. During this phase
landowners shall apply the riparian management area prescriptions to all small
Type N streams as described in OAR 629-643-0130 and OAR 629-643-0143, whether
or not a stream is mapped as perennial. This requirement ends once the State
Forester implements the Phase 2 model.
(b) Phase 2 Model. When advised by Department
of Fish and Wildlife that an approved flow duration model sufficient for
regulatory purposes is available, the State Forester shall promptly publish the
information, including the modeled end, in all maps and the department's
reporting and notification system, and in no event later than July 1,
2025.
(c) Field Verification. The
operator may conduct field surveys for verification of the modeled end in
accordance with Department of Fish and Wildlife field protocols for model
verification. Once the verified end is approved by the Department of Fish and
Wildlife, the State Forester shall substitute the verified end for the modeled
end in all maps and the department's reporting and notification
system.
Statutory/Other Authority: ORS
527.710,
527.630(3),
527.714,
526.016(4)
& section 2(1), chapter 33, Oregon Laws 2022
Statutes/Other Implemented: ORS
527.714,
527.715,
527.765 & section 2(2),
chapter 33, Oregon Laws 2022
