Jack Scott Farms, Inc. v. Dept. of State Lands , 336 Or. App. 139 ( 2024 )

No. 809 November 14, 2024 139
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JACK SCOTT FARMS, INC.,
Petitioner,
v.
DEPARTMENT OF STATE LANDS,
Respondent.
Department of State Lands
WD20190640;
A178900
Argued November 7, 2023.
Matthew A. Martin argued the cause for petitioner. Also
on the briefs were T. Beau Ellis and Vial Fotheringham LLP.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Pagán, Judge, and Mooney,
Senior Judge.
SHORR, P. J.
Affirmed.
140 Jack Scott Farms, Inc. v. Dept. of State Lands
SHORR, P. J.
Petitioner Jack Scott Farms, Inc. petitions for
judicial review of a final order of the Oregon Department
of State Lands (DSL), in which DSL asserts regulatory
jurisdiction over wetland on petitioner’s property under
Oregon’s Removal-Fill Law, ORS 196.800 to 196.990.
Petitioner contends that the order lacks substantial evi-
dence and substantial reason and seeks reversal of the
order. Its three assignments of error pertain to what it
describes as “three distinct features” on petitioner’s prop-
erty: a historic pond, an irrigation ditch, and a connect-
ing ditch between the two. We conclude that the order is
supported by substantial evidence and substantial reason
and, therefore, affirm.
We review an agency’s final order for substan-
tial evidence and errors of law. ORS 183.482(8)(a), (c).
“Substantial evidence exists to support a finding of fact
when the record, viewed as a whole, would permit a rea-
sonable person to make that finding.” ORS 183.482(8)(c).
“Implicit in the requirement that orders be supported by
substantial evidence is an additional requirement that
they be supported by substantial reason. An order is sup-
ported by substantial reason when it articulates a rational
connection between the facts and the legal conclusions it
draws from them.” SAIF v. Coria, 371 Or 1, 12, 528 P3d
785 (2023) (citation, internal quotation marks, and brack-
ets omitted). We are bound by DSL’s findings of historical
fact if they are supported by substantial evidence in the
record. Id. at 4.
We begin with the regulatory framework. As rele-
vant here, under ORS 196.810(1)(a) (2015), amended by Or
Laws 2023, ch 403, §§ 6, 7, “a person may not remove any
material from the beds or banks of any waters of this state
or fill any waters of this state without a permit issued under
the authority of the Director of the Department of State
Lands.” DSL has the authority to take action to enforce the
rules on unpermitted removal and fill occurring in any of
the waters of this state. ORS 196.860(1), (3). The definition
of “waters of this state” is
Cite as 336 Or App 139 (2024) 141
“all natural waterways, tidal and nontidal bays, intermit-
tent streams, constantly flowing streams, lakes, wetlands,
that portion of the Pacific Ocean that is in the boundaries
of this state, all other navigable and nonnavigable bodies of
water in this state and those portions of the ocean shore, as
defined in ORS 390.605, where removal or fill activities are
regulated under a state-assumed permit program as pro-
vided in 33 U.S.C. 1344(g) of the Federal Water Pollution
Control Act, as amended.”
ORS 196.800(15) (2013), amended by Or Laws 2023, ch 403,
§§ 13, 14; OAR 141-085-0510(107). “ ‘Wetlands’ means those
areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil con-
ditions.” ORS 196.800(17) (2013). “Any person who violates
any provision of ORS 196.600 to 196.921 or any rule, order
or permit adopted or issued under ORS 196.600 to 196.921
shall be subject to a civil penalty in an amount to be deter-
mined by the Director of the Department of State Lands of
not more than $10,000 per day of violation.” ORS 196.890.
OAR chapter 141, division 90, contains the rules for
wetland delineation report requirements and for jurisdic-
tional determinations for the purpose of regulating fill and
removal within waters of this state. A “jurisdictional deter-
mination” (JD) is defined as:
“a written decision by the Department that waters of this
state subject to regulation and authorization requirements
[of certain OARs] are present or not present within a study
area. The JD may include a delineation of the geographic
boundaries of the area subject to state jurisdiction. For
example, a JD may include the location of a wetland bound-
ary or the location of the ordinary high water line (ordi-
nary high water mark) of a waterway. A JD may, but does
not necessarily, include a determination that a particular
activity in a water of this state is subject to authorization
requirements. The decision record includes the basis of
the jurisdictional determination and is a final order sub-
ject to reconsideration according to the provisions in [OAR]
141-090-0050.”
142 Jack Scott Farms, Inc. v. Dept. of State Lands
OAR 141-090-0020(20). A landowner may seek reconsider-
ation of a JD and then request review through a contested
case hearing. OAR 141-090-0050(1), (4).
We turn to the facts of this case.1 Petitioner pur-
chased the subject property in 2013 to expand its hazelnut
farming operations. As part of preparing the land for farm-
ing, petitioner excavated and graded the land. Subsequently,
DSL received a report of excavation work at the subject
property possibly in violation of Oregon’s Removal-Fill Law.
DSL employees inspected the property and determined that
approximately four and one-half acres of wetland existed
on the subject property prior to grading. In August 2019,
DSL issued a Proposed Order for Corrective Action and
Civil Penalty, finding that petitioner had violated Oregon’s
Removal-Fill Law. The proposed order required petitioner
to, among other things, engage a wetland consultant to pre-
pare a wetland delineation report and submit it to DSL.2
Petitioner did not appeal that proposed order and it became
final as a matter of law.
Petitioner hired Terra Science, Inc. (TSI) to per-
form the wetland delineation and prepare the report. TSI
provided a report dated December 9, 2019, to DSL. TSI con-
firmed the existence of wetlands and concluded that 2.33
acres of “pre-disturbance aquatic features” existed on the
property. The report summary included two features: “exca-
vated drainage” in the amount of 0.36 acres and “histori-
cally excavated pond” in the amount of 2.3 acres. A map of
the subject area is below; within the study area boundary,
the solid line that crosses diagonally near the bottom of map
represents the excavated drainage and the dotted area rep-
resents the pond.
1
We provide additional facts, as necessary, in our discussion of each of peti-
tioner’s assignments of error.
2
A wetland delineation report is:
“a written document that contains the methods, data, conclusions, and maps
used to determine if wetlands and other waters of this state are present
within a study area and, if so, describes and maps their locations and geo-
graphic extent. A wetland determination report documenting the presence or
absence of waters of this state is included within this definition.”
OAR 141-090-0020(45).
Cite as 336 Or App 139 (2024) 143
DSL reviewed the report to determine, in part,
whether the wetland features identified fell within the juris-
diction of DSL. DSL ultimately accepted TSI’s wetland delin-
eation with certain alterations and, in April 2020, issued a
jurisdictional determination concurring with TSI’s wetland
identification and finding that the wetlands on petitioner’s
property fell within DSL jurisdiction and were subject to the
Removal-Fill Law.
Petitioner sought reconsideration of the April 2020
jurisdictional wetland determination, and, in December
2020, DSL issued its reconsideration decision. DSL found
that the on-site drainage and the historically excavated
pond were still determined to be jurisdictional. Petitioner
then requested a contested case hearing, which was held
before an administrative law judge (ALJ) on August 17,
2021. The ALJ issued a proposed order in December 2021.
144 Jack Scott Farms, Inc. v. Dept. of State Lands
The Director of DSL adopted that proposed order, with one
change for clarity, and issued a final order on May 2, 2022,
“affirming [DSL’s] jurisdictional determination delineating
a total of 2.33 acres of jurisdictional wetland on the subject
property.” Petitioner seeks judicial review of that final order.
Before we address the specific assignments of error,
we note that both parties agree that the final order accu-
rately states the burden of proof for the parties below:
“As the proponent of the jurisdictional determination, DSL
bears the burden of proving, by a preponderance of the evi-
dence, that it correctly determined the subject area was
jurisdictional wetlands. Similarly, to the extent [petitioner]
asserts exemptions from or affirmative defenses to DSL’s
jurisdictional determination, [petitioner] bears the burden
to establish any such exemptions or defenses by the same
standard of proof. * * * Proof by a preponderance of the evi-
dence means that the fact finder is convinced that the facts
asserted are more likely true than false.”
We begin with petitioner’s third assignment of
error. Petitioner contends that DSL erred in concluding that
the historic pond is a jurisdictional water feature. There
is no dispute that there was a pond on the property and
that the pond was likely used for the storage of logs at one
point in time. Petitioner’s theory below was that the pond
was exempt from DSL’s jurisdiction based on OAR 141-
085-0515(7)(h). OAR 141-085-0515 “describes the types and
jurisdictional limits of the waters of this state that are reg-
ulated by the Department of State Lands.” Paragraph (7)(h)
of that section provides an exemption relied on by petitioner
here:
“Exempt Artificially Created Wetlands and Ponds.
Artificially created wetlands and ponds created entirely
from upland, regardless of size, are not waters of this state
if they are constructed for the purpose of:
“* * * * *
“(h) Log storage[.]”
OAR 141-085-0515(7)(h) (emphasis added). The parties dis-
agreed that the pond was “created entirely from upland.”
“Upland” is defined as, “any land that is not a wetland or
Cite as 336 Or App 139 (2024) 145
other water.” OAR 141-090-0020(41). The final order con-
cluded that
“DSL established, by a preponderance of the evidence,
that the excavated pond feature, identified in the wetland
delineation report was created from a pre-existing, nat-
urally occurring wetland feature (i.e., a water-retaining
meander scar). As such, the pond was not excavated entirely
from uplands. As an artificially created pond greater than
one acre in size the feature qualifies as waters of the state
and falls within the jurisdiction of DSL unless shown to be
exempt. OAR 141-085-510(107) and OAR 141-085-515(6).
* * * [Petitioner] failed to demonstrate the former pond was
exempt as a log storage pond because it was not created
entirely from uplands.”
On review, petitioner contends that DSL erred in
its reliance on the testimony of the two DSL employees who
testified as experts at the hearing, Matthew Unitis and
Peter Ryan, without explanation or reasoning, over the tes-
timony of two of the witnesses called by petitioner, Walter
“Jack” Scott and Nathan Birky. Petitioner asserts that the
testimony of Unitis and Ryan was given dispositive weight
by the ALJ, who accepted their testimony to the exclusion
of contrary testimony. In petitioner’s view, when the ALJ
appeared to treat the expert testimony from Unitis and
Ryan as conclusive on the issues raised, without making an
attempt to justify its decisions to do so, that left its final
order bereft of substantial evidence and substantial reason.
In response, DSL argues that its witnesses were qualified to
testify as they did, and that the testimony offered by Scott
and Birky did not counter the evidence presented by DSL.
We disagree with petitioner’s characterization of the final
order and agree with DSL.
Unitis is a jurisdictional coordinator for DSL. He
testified about his education and experience and the ALJ
accepted him as an expert in wetland delineations and
jurisdictional wetlands over the objection of petitioner.3 The
final order contains the following findings of fact: “Unitis
3
We do not understand petitioner to challenge the expert designation on
review. Rather, petitioner contends that DSL was required to, and did not, pro-
vide an explanation for why it was relying on the testimony of the DSL employees
over two of petitioner’s witnesses.
146 Jack Scott Farms, Inc. v. Dept. of State Lands
reviewed historic information and his own data collected
during the August 2019 inspection”; he consulted a DSL-
created hydric soil map and learned that the subject prop-
erty consisted of a type of hydric soil, which was consistent
with soil samples;4 and he consulted maps for the National
Wetland Inventory. “From the historic information, includ-
ing evidence of low-land meander scars and natural drain-
age features, soil samples, and information provided in the
wetland delineation report, Mr. Unitis concluded the former
pond was likely created from a pre-existing wetland fea-
ture.” Those findings are supported by the record.
The findings also include the fact that Unitis
accepted the total acreage of wetlands identified in TSI’s
report, but he had questions about the report’s conclusions
regarding the historic existence and use of the wetland fea-
tures.5 Unitis exchanged emails and information with the
author of the TSI report, Monnin, and ultimately Monnin
“agreed that the historic information did not support the
determination that the pond was created entirely from
uplands or was used primarily for log storage.”
Peter Ryan, an aquatic resources specialist for
DSL, testified at the hearing as an expert in the review
of wetland delineation reports, and testified to his famil-
iarity with DSL rules and jurisdiction standards. He was
assigned petitioner’s request for reconsideration of the April
2020 jurisdictional determination. As part of his review, he
gathered additional information from the US Army Corps
of Engineers: historical aerials of the subject property, the
earliest of which was from 1936. He reviewed aerial images,
topographic maps, and the National Hydrography Dataset
and determined that the subject property sits in the natu-
ral floodplain of Crabtree Creek. He focused on the earliest
photos because the primary question was the origin of the
feature, i.e., the pond. He testified that based on his review
of the information about the pond, “it appeared to have been
a natural feature [that] may have been modified.”
The final order summarizes the DSL evidence:
4
Unitis testified that “hydric” means “typically wet.”
5
The TSI report included a determination that the former pond was initially
created from uplands around 1940 as part of a logging operation.
Cite as 336 Or App 139 (2024) 147
“At hearing, DSL presented significant documentary
evidence and expert testimony supporting its finding that
the feature in question was more likely than not excavated
from an existing wetland feature created by the overflow
of Crabtree Creek. That evidence included DSL created
soil maps, FEMA floodplain data, the National Wetland
Inventory maps for the area surrounding the subject prop-
erty, and hydrographic data related to the floodplain of
Crabtree Creek.”
The order goes on to explain why DSL was not per-
suaded by petitioner’s witnesses. To rebut the information
from DSL, petitioner “relied on testimony from Mr. Scott
and from Nathan Birky, a neighbor located across the road
from Mr. Scott who resided, for a period prior to 1965, on
the subject property.” The final order describes Birky’s tes-
timony as “anecdotal at best.” Birky lived on the property
beginning in 1948 from approximately the ages of 2 to 19; he
testified that there had been logging on the property prior
to his family moving there, but he did not know when, and
his father did some additional logging of Douglas Fir trees.
According to Birky, there was a sawmill, a log pond, and
a sawdust pile; Birky described various other physical fea-
tures of the property.
Scott provided testimony about the condition of
the subject property when it was purchased by petitioner—
including the kinds of vegetation present—and about the
process of clearing the land so that it could be used for
hazelnut farming. Regarding the acreage near the histori-
cal pond, he explained, “We didn’t think clearing brush was
any problem. There was absolutely no water. All it was, it
was hawthorn trees, one big cottonwood tree, a couple oak
trees and berry briars.” The final order summarizes the
ALJ’s view about Scott’s testimony:
“To the extent that Mr. Scott testified to the existence of
upland trees present on the study area prior to grading,
Mr. Scott’s qualifications to identify and distinguish tree
species and their viability in wetland environments was
not established at hearing and is therefore insufficient to
overcome the expert testimony provided by DSL witnesses.”
The final order also recognizes that petitioner’s
“consultant agreed with DSL that the artificially created
148 Jack Scott Farms, Inc. v. Dept. of State Lands
pond was jurisdictional because it was larger than one acre
and did not qualify for exemption as a log storage pond.”
The facts articulated in the final order are sup-
ported by the record. Further, we conclude that the final
order “articulates a rational connection between the facts
and the legal conclusions it draws from them.” Coria, 317 Or
at 12. The order concludes that DSL’s evidence established
that the pond feature “was created from a pre-existing, nat-
urally occurring wetland feature” and therefore “not exca-
vated entirely from uplands.” Petitioner had the burden to
establish by a preponderance of the evidence that the pond
qualified for the log storage exemption from DSL jurisdic-
tion, but it did not meet that burden. For the foregoing rea-
sons, we reject the arguments raised in petitioner’s third
assignment of error.
Petitioner’s first assignment of error is related to
its third. Petitioner notes that there are two primary water
features in the delineation area: the historic pond and the
irrigation ditch. Petitioner then asserts that those two fea-
tures are connected by a third water feature, which it refers
to as the “connecting ditch.”6 Petitioner contends that DSL
erred in concluding, by implication and without discussion,
that the connecting ditch is a jurisdictional water feature.
It asserts that DSL’s tacit assumption of jurisdiction over
the connecting ditch is not supported by any evidence, nor
any reasoning, and it is contrary to the Removal-Fill Law
and DSL’s administrative rules. In response, DSL argues
that the documentary evidence and expert testimony in the
record treats the entire 2.3-acre wetland as a single unit,
that the area that petitioner identified is within the area
that TSI designated as wetland, and that the area is also
within the area that DSL’s experts described as the site of
the historic, natural wetland. We agree with DSL’s assess-
ment of the final order and the record that supports it.
Although petitioner contends in its reply brief that
“[b]efore DSL, Petitioner repeatedly raised the Connecting
6
We use the terms “irrigation ditch” and “connecting ditch” because those
are the terms used by petitioner and not because we agree that petitioner’s
usage meets the definitions of certain terminology contained in the Oregon
Administrative Rules.
Cite as 336 Or App 139 (2024) 149
Ditch as a jurisdictionally distinct body of water,” we note
that petitioner first asserted that the connecting ditch should
be assessed as its own distinct feature in its post-hearing
memorandum dated September 20, 2021. Even in its pre-
hearing memorandum, petitioner addressed the pond and
connecting ditch as one unit that was all part of a 2.3-acre
feature.7 On review, petitioner does not dispute the fact that
the connecting ditch is within the 2.3 acre wetland as desig-
nated by TSI, the consultant it hired. It also does not explain
why, in its view, the connecting ditch had to be considered
separately when the area it refers to as a distinct body of
water was included as part of the 2.3 acre wetland that was
determined to be jurisdictional.
Petitioner argues that the “undisputed evidence
in the record demonstrates that this ditch was artificially
constructed out of upland,” and that under OAR 141-085-
0515(8)(b), the ditch would not be jurisdictional. OAR 141-
085-0515(8) addresses jurisdiction both over ditches created
from wetland and ditches created from upland. It provides,
in part:
“Jurisdictional Ditches. Except as provided under [sec-
tions regarding non-jurisdictional irrigation ditches and
non-jurisdictional roadside and railroad ditches], ditches
are jurisdictional if they are:
“(a) Created in wetlands, estuaries, tidal rivers or
other waters of this state; or
“(b) Created from upland and meet the following
conditions:
“(A) Contain food and game fish; and
“(B) Have a free and open connection to waters of this
state. * * *.”
Because, as explained above, the connecting ditch was cre-
ated in wetlands, it qualifies as jurisdictional under OAR
141-085-0515(8)(a). As we explained above, the conclusion
in the final order that the 2.3 acre area is jurisdictional is
7
In that document, in its discussion of the 2.3-acre feature, petitioner stated
that “the excavated pond was originally fed by a north-draining ditch, which was
improved following the conversion of the property to agricultural purposes in the
1950s. * * * Eventually, this northern ditch was abandoned and plowed over in
favor of a connection to the southern excavated drainage.”
150 Jack Scott Farms, Inc. v. Dept. of State Lands
supported by substantial evidence and reason. We therefore
reject petitioner’s first assignment of error.
We turn to petitioner’s second assignment of error,
in which petitioner asserts that DSL erred in concluding
that the irrigation ditch is a jurisdictional water feature.
Petitioner makes two arguments in support of that assign-
ment: (1) the irrigation ditch is not a “water of this state”
as defined by the Removal-Fill Law and (2) even if the irri-
gation ditch is a water of this state, it is exempt from the
Removal-Fill Law as a non-jurisdictional irrigation ditch.
In response, DSL argues that the channel had been created
from a pre-existing perennial stream and that the final
order determined that the irrigation channel was a water of
the state. DSL also argues that petitioner did not prove that
the channel fit within the exception for irrigation ditches
in OAR 141-085-0515(9), and therefore, the order correctly
determined that the exception does not apply.
The final order contains the legal conclusion that
“DSL correctly determined that wetlands on [petitioner’s]
property were jurisdictional wetlands subject to Oregon’s
Removal-Fill Law.” In its discussion of the drainage chan-
nel—the feature that petitioner refers to as the irrigation
ditch—the final order states:
“* * * [Petitioner] argues that the channel feature is not
within the jurisdiction of DSL because it was a wholly man-
made irrigation ditch and therefore exempt from regula-
tion under OAR 141-085-0515(9).
“OAR 141-085-0010(30) defines a ditch, for the pur-
poses of DSL’s enforcement of the Removal-Fill Law, as
‘a manmade water conveyance channel.’ The evidence at
hearing establishes that the irrigation/drainage channel
in issue was a pre-existing drainage feature of the flood-
plain that was channelized to improve water conveyance.
The preponderance of the evidence indicates the feature in
issue existed in some form as far back as 1936, prior to any
logging operations on the subject property. OAR 141-085-
0010(30) also provides, ‘[c]hannels that are manipulated
streams are not considered ditches.’ [Petitioner] offered no
persuasive evidence to rebut the interpretations of histor-
ical data presented by DSL expert witnesses. More likely
than not, the irrigation/drainage channel was created by
Cite as 336 Or App 139 (2024) 151
widening, deepening, and/or reinforcing the banks of a pre-
existing naturally occurring drainage channel. As such, it
does not qualify as a ditch under OAR 141-085-0010(30)
and is not exempt from DSL jurisdiction. OAR 141-085-
0515(8)(a). Moreover, DSL established that the drainage
channel cannot be dewatered due to multiple sources con-
tributing water to the connected system. As such, even if
[petitioner] were able to establish the channel is a ‘ditch’
under OAR 141-085-0010(30), it failed to show that con-
veyance qualifies as a non-jurisdictional ditch pursuant to
OAR 141-085-0515(9).
“DSL established that * * * the irrigation/drainage ditch
[was] created from pre-existing naturally occurring wet-
lands. [Petitioner] failed to demonstrate that any of the
features within the study area of the subject property were
exempt from DSL jurisdiction for purposes of this state’s
Removal-Fill Law.”
Petitioner asserts that DSL assumed that the
irrigation ditch was jurisdictional before making findings
regarding the applicability of a jurisdictional exception and
concluding that the irrigation ditch was not a non-jurisdic-
tional irrigation ditch. For that reason, petitioner argues,
DSL’s conclusion that the irrigation ditch is jurisdictional
is neither supported by substantial reason nor by substan-
tial evidence. Further, according to petitioner, even accept-
ing DSL’s findings, the irrigation ditch is not a “water of
the state.” We disagree with petitioner’s assertions that the
final order is deficient; it is supported by substantial evi-
dence and substantial reason.
We first note that the final order includes a list of
definitions from OAR 141-085-0510 that were relevant for
the analysis contained therein. It states that a “channel”
is defined as “a natural (perennial or intermittent stream)
or human made (e.g. drainage ditch) waterway that peri-
odically or continuously contains moving water and has a
defined bed and bank that serve to confine the water.” OAR
141-085-0510(12). The definition for “ditch” is also included:
“a manmade water conveyance channel. Channels that are
manipulated streams are not considered ditches.” OAR 141-
085-0510(30) (emphasis in final order). The final order also
includes the definition for “perennial stream,” which is “a
152 Jack Scott Farms, Inc. v. Dept. of State Lands
stream that has continuous flow in parts of its bed all year
long during years of normal precipitation.” OAR 141-085-
0510(74). Because the order specifically refers to this water
feature as a “channel,” emphasizes the portion of the defi-
nition for “ditch” that it does, and specifically states that
“it does not qualify as a ditch,” we understand the order to
conclude that the subject feature was a channel that was a
manipulated stream, and not a ditch.8 The final order also
states that
“OAR 141-085-0515 identifies DSL’s removal-fill jurisdic-
tion by waterbody type and provides, in pertinent part:
“This section describes the types and jurisdictional
limits of the waters of this state that are regulated by the
Department of State Lands.
“* * * * *
“(3) Waters, Including Rivers, Intermittent and
Perennial Streams, Lakes and Ponds. These waters are
jurisdictional to the ordinary high water line (OHWL).
* * *.”
We understand the final order’s reference to OAR 141-085-
0515(3) along with its description of the waterway as a chan-
nel and explicitly rejecting it as a ditch to be a conclusion
that the drainage channel is a water of the state.
Those conclusions are supported by substantial
evidence in the record. The relevant findings in the final
order include the following. TSI determined that there was
a 0.36 acre drainage channel within the study area. The
drainage channel “extended the length of the study area at
the southern end and was currently managed by the Gaines
Water Improvement District to convey irrigation water to
district members via Crabtree Creek.” Unitis suspected
that the drainage channel was actually a preexisting natu-
ral drainage that had been artificially straightened, which
was historically common on agricultural land in the area.
8
Although the final order also includes a definition of “intermittent stream,”
which is “any stream which flows during a portion of every year and which pro-
vides spawning, rearing or food-producing areas for food and game fish,” OAR
141-085-0510(49), the order contains no findings regarding fish in the drainage
channel, and thus, we do not understand the order to have concluded that the
drainage channel was an intermittent stream.
Cite as 336 Or App 139 (2024) 153
In Unitis’s email exchange with Monnin from TSI, Unitis
asked whether there was any evidence suggesting that the
irrigation channel was not created from a pre-existing nat-
ural drainage feature. DSL ultimately accepted TSI’s wet-
land delineation and issued a jurisdictional determination
that included a finding that the wetlands fell within DSL
jurisdiction. When Ryan was reviewing the file as part of
the reconsideration process, he “consulted DSL’s Hydric
Soils Map and determined both the excavated pond and the
alleged ditch contained hydric, or wetland, soil.” Ryan also
contacted the president of the Gaines Water Improvement
District “who informed him that the water conveyance sys-
tem that included the alleged ditch was a combination of
natural waterways and man-made connections” and that
“the channel within the study area cannot be dewatered
because multiple sources contribute water to the system and
thus the channel.”9 Ryan also reviewed topographic maps
and “determined that the channel in issue is a naturally
occurring tributary to Crabtree Creek that was later chan-
nelized.” And as quoted above, the final order articulates a
rational connection between those facts and the legal con-
clusions it drew from them.
Having concluded that the final order is supported
by substantial evidence and substantial reason regarding its
determination that the drainage channel is a jurisdictional
wetland subject to Oregon’s Removal-Fill Law and that the
channel is not a ditch, we need not address petitioner’s con-
tention that the drainage channel qualifies as a non-juris-
dictional ditch—which would mean that it is exempt from
the Removal-Fill Law—and that DSL erred in concluding
otherwise.10
9
Petitioner asserts that DSL erred in relying on hearsay. However, peti-
tioner did not object to that testimony at the hearing and that argument before
us is not well-taken.
10
As explained above, the final order concludes that the drainage channel
does not qualify as a ditch, but that even if it did, petitioner “failed to show that
conveyance qualifies as a nonjurisdictional ditch pursuant to OAR 141-085-
0515(9).” OAR 141-085-0515(9) states:
“Non-Jurisdictional Irrigation Ditches. Existing irrigation ditches that
meet the following tests are not jurisdictional:
“(a) Are operated and maintained for the primary purpose of conveying
water for irrigation; and
154 Jack Scott Farms, Inc. v. Dept. of State Lands
In sum, we conclude that the final order is sup-
ported by substantial evidence and substantial reason, and
we reject all of petitioner’s assignments of error.
Affirmed.
“(b) Are dewatered for the non-irrigation season except for water inciden-
tally retained in isolated low areas of the ditch or are used for stock water
runs, provision of water for fire suppression, or to collect storm water runoff.”
Because the irrigation channel is not a “ditch,” this exception would not apply.