Or. Admin. R. 141-090-0050 - Request for Reconsideration, Contested Case, and Independent Review

(1) A JD by the Department may be reconsidered upon written request to the Department by the landowner, agent, or applicant with landowner approval within six months of the date of the JD (date the letter or form was signed by the Department). The request for reconsideration initiates an informal review process.

(2) New information may be provided by the applicant, landowner, agent or the Department, or may be requested by the Department, as part of the reconsideration process.

(3) A reconsideration may result in a modified JD or in the reaffirmation of the original JD.

(4) In the event that the landowner, agent, or applicant with landowner permission disagrees with the reconsideration decision, the applicant, landowner or agent may:

(a) Request a contested case proceeding pursuant to ORS 183.413 through 183.470 by submitting a written request so that it is received by the Department within 21 calendar days of the reconsideration decision; or

(b) Request an independent review per Oregon Laws 2012, c. 108, ¦ 2 by submitting a written request so that it is received by the Department within 21 calendar days of the reconsideration decision. The independent review option is available only when the disagreement is over a wetland determination or delineation that has been the subject of reconsideration by the Department. The independent review option is not available for ordinary high water or highest measured tide determinations and does not involve a review of whether the wetland or other water is subject to state regulation.

(5) The Department will maintain a list of persons that are qualified under Oregon Laws 2012, c. 108, ¦ 2 to be independent reviewers and that have qualified through a contract solicitation. If there are no such persons, the list shall be blank.

(6) Upon receipt of the written request for an independent review, the Department will contact all of the persons on the list maintained by the Department under section (5) of this rule and request that they either disclose all prior knowledge of the land parcel that is the subject of the review and any potential or actual conflicts of interests, or state that they will not serve as an independent reviewer in the review. The person shall sign the disclosure to certify that the disclosure is accurate. The Department will develop a list of persons that made the required disclosures and that have not identified any interest in the land parcel that is the subject of the review. The Department shall provide the list and the signed disclosures to the requestor of the request for an independent review.

(7) The requestor and the Department shall each select one person from the list developed by the Department under section (6) of this rule.

(8) The two selected independent reviewers shall select a third person from the list developed by the Department under section (6) of this rule. If the two selected reviewers do not jointly agree on the selection of a third reviewer, the Department shall request the US Army Corps of Engineers to provide a reviewer who has at least five years of experience with wetland delineation per the manual.

(9) The panel of independent reviewers shall submit to the Department and the requestor a written itemized estimate of the costs of the independent review, including all expenses and fees.

(10) Upon selection of three independent reviewers, the Department shall enter agreements with each of the independent reviewers, except for an independent reviewer provided by the U.S. Corps of Engineers. The agreements shall include but not be limited to the following:

(a) A maximum compensation amount not to exceed 120% of the sum of the written itemized estimates of the costs of the independent review provided to the Department by the panel of independent reviewers under section (9) of this rule;

(b) A maximum term for performance of the independent review of 60 calendar days from the date on which all three independent reviewers were selected; and

(c) A requirement that the panel of independent reviewers shall determine the cost of the review, subject to the maximum compensation amount.

(11) The Department will enter into a written agreement with the requestor which includes the following:

(a) The list of the three independent reviewers selected;

(b) A promise by the requestor to deliver a deposit to the Department within 5 calendar days in the amount of 60% of the sum of the written itemized estimate;

(c) A provision stating that the determination of the panel of independent reviewers shall be final and binding, with no opportunity for a contested case or any judicial review;

(d) A provision that the panel of independent reviewers will review the record, conduct a site visit and gather additional information if needed, write a decision that includes findings of fact, and a conclusion that either affirms or modifies the wetland determination or delineation issued by the Department after reconsideration; and

(e) A promise by the requestor to pay 60% of the cost of the independent review, including all expenses and fees, regardless of the outcome of the review. If the amount exceeds the deposit provided under section 9, the requestor shall pay the excess amount to the Department within 15 calendar days of the issuance of the decision by the panel of independent reviewers. If the amount is less than the deposit provided under section 9, the Department will return the excess deposit to the requestor within 15 calendar days of the issuance of the decision by the panel of independent reviewers.

(12) The criteria by which the panel of independent reviewers will evaluate the wetland delineation or determination shall include only the following:

(a) OAR 141-090-0005 through 141-090-0020, 141-090-0030, and 141-090-0035;

(b) OAR 141-090-0045, if the wetland delineation was reissued by the Department; and

(c) The manual, as defined in OAR 141-090-0020(17).

(13) The record for the independent review consists of the following:

(a) The original report submitted per OAR 141-090-0035;

(b) All documents related to the JD per OAR 141-090-0025 or OAR 141-090-0040; and

(c) All documents related to the Department's reconsideration per OAR 141-090-0050.

(14) The panel will take the following actions:

(a) Review the record;

(b) Gather additional information and conduct a site visit, if needed; and

(c) Draft findings of fact and a conclusion that either affirms or modifies the wetland determination or delineation that the Department issued after reconsideration.

(15) Within 60 days of the date on which all three independent reviewers were selected, the panel will submit a decision in writing to the Department and to the Requestor that includes findings of fact, a conclusion, and a decision that either affirms of modifies the wetland determination or delineation that the Department issued after reconsideration.

Notes

Or. Admin. R. 141-090-0050

DSL 3-2001, f. 4-18-01, cert. ef. 7-1-01; DSL 1-2004, f. & cert. ef. 5-21-04; DSL 6-2007, f. 12-13-07, cert. ef. 1-1-08; DSL 6-2012, f. 12-13-12, cert. ef. 1-1-13

Stat. Auth.: ORS 196.845 & 196.692

Stats. Implemented: ORS 196.800 - 196.990, 196.600 - 196.665, 196.668 - 196.692 & 197.279 & 2012 OL Ch. 108