Or. Admin. Code § 350-082-0670

Current through Register Vol. 63, No. 11, November 1, 2024

Section 350-082-0670 - Special Management Areas Natural Resource Review Criteria

(1) All new development and uses, as described in a site plan prepared by the applicant, shall be evaluated using the following guidelines to ensure that natural resources are protected from adverse effects. Cumulative effects analysis is not required for expedited review uses or development. Comments from state and federal agencies shall be carefully considered.

(2) Water Resources (Wetlands, Streams, Ponds, Lakes, and Riparian Areas)

(a) All Water Resources shall, in part, be protected by establishing undisturbed buffer zones as specified in subsections (2)(a)(B)(i) and (ii) below. These buffer zones are measured horizontally from a wetland, stream, lake, or pond boundary as defined below.

(A) All buffer zones shall be retained undisturbed and in their natural condition, except as permitted with a mitigation plan.

(B) Buffer zones shall be measured outward from the bank full flow boundary for streams, the high water mark for ponds and lakes, the normal pool elevation for the Columbia River, and the wetland delineation boundary for wetlands on a horizontal scale that is perpendicular to the wetlands, stream, pond or lake boundary. On the main stem of the Columbia River above Bonneville Dam, buffer zones shall be measured landward from the normal pool elevation of the Columbia River. The following buffer zone widths shall be required:

(i) A minimum 200-foot buffer on each wetland, pond, lake, and each bank of a perennial or fish bearing stream, some of which can be intermittent.

(ii) A 50-foot buffer zone along each bank of intermittent (including ephemeral), non-fish bearing streams.

(iii) Maintenance, repair, reconstruction and realignment of roads and railroads within their rights-of-way shall be exempted from the wetlands and riparian guidelines upon demonstration of all of the following:

(I) The wetland within the right-of-way is a drainage ditch not part of a larger wetland outside of the right-of-way;

(II) The wetland is not critical habitat; and

(III) Proposed activities within the right-of-way would not adversely affect a wetland adjacent to the right-of-way.

(C) The buffer width shall be increased for the following:

(i) When the channel migration zone exceeds the recommended buffer width, the buffer width shall extend to the outer edge of the channel migration zone;

(ii) When the frequently flooded area exceeds the recommended riparian buffer zone width, the buffer width shall be extended to the outer edge of the frequently flooded area; or

(iii) When an erosion or landslide hazard area exceeds the recommended width of the buffer, the buffer width shall be extended to include the hazard area.

(D) Buffer zones can be reconfigured if a project applicant demonstrates the integrity and function of the buffer zones is maintained, the total buffer area on the development proposal is not decreased, the width reduction shall not occur within another buffer, and the buffer zone width is not reduced more than 50% at any particular location. Such features as intervening topography, vegetation, human-made features, natural plant or wildlife habitat boundaries, and flood plain characteristics could be considered.

(E) Requests to reconfigure buffer zones shall be considered if an appropriate professional (botanist, plant ecologist, wildlife biologist, or hydrologist), hired by the project applicant identifies the precise location of the rare wildlife or plant or water resource, describes the biology of the rare wildlife or plant or hydrologic condition of the water resource, and demonstrates that the proposed use will not have any negative effects, either direct or indirect, on the affected wildlife or plant and their surrounding habitat that is vital to their long-term survival or water resource and its long term function.

(F) The Executive Director shall submit all requests to re-configure rare wildlife or plant or water resource buffers to the Forest Service and the appropriate state agencies for review. All written comments shall be included in the project file. Based on the comments from the state and federal agencies, the Executive Director will make a final decision on whether the reconfigured buffer zones are justified. If the final decision contradicts the comments submitted by the federal and state agencies, the Executive Director shall justify how the opposing conclusion was reached.

(b) When a buffer zone is disturbed by a new use, it shall be replanted with only native plant species of the Columbia River Gorge.

(c) The applicant shall be responsible for identifying all water resources and their appropriate buffers.

(d) Wetlands Boundaries shall be delineated using the following:

(A) The approximate location and extent of wetlands in the National Scenic Area is shown on the National Wetlands Inventory (U. S. Department of the Interior). In addition, the list of hydric soils and the soil survey maps shall be used as an indicator of wetlands.

(B) Some wetlands may not be shown on the wetlands inventory or soil survey maps. Wetlands that are discovered by the local planning staff during an inspection of a potential project site shall be delineated and protected.

(C) The project applicant shall be responsible for determining the exact location of a wetlands boundary. Wetlands boundaries shall be delineated using the procedures specified in the Corps of Engineers Wetlands Delineation Manual (on-line edition) and applicable Regional Supplements.

(D) All wetlands delineations shall be conducted by a professional who has been trained to use the federal delineation procedures.

(e) Stream, pond, and lake boundaries shall be delineated using the bank full flow boundary for streams and the high water mark for ponds and lakes. The project applicant shall be responsible for determining the exact location of the appropriate boundary for the water resource.

(f) The Executive Director may verify the accuracy of, and render adjustments to, a bank full flow, high water mark, normal pool elevation (for the Columbia River), or wetland boundary delineation. If the adjusted boundary is contested by the project applicant, the Executive Director shall obtain professional services, at the project applicant's expense, or ask for technical assistance from the Forest Service to render a final delineation.

(g) Buffer zones shall be undisturbed unless the following criteria have been satisfied:

(A) The proposed use must have no practicable alternative as determined by 350-082-0680.

(B) Those portions of a proposed use that have a practicable alternative will not be located in water resources or their buffer zone.

(C) Filling and draining of wetlands shall be prohibited with exceptions related to public safety or restoration or enhancement activities as permitted when all of the following criteria have been met:

(i) A documented public safety hazard exists or a restoration or enhancement project exists that would benefit the public and is corrected or achieved only by impacting the wetland in question;

(ii) Impacts to the wetland must be the last possible documented alternative in fixing the public safety concern or completing the restoration or enhancement project; and

(iii) The proposed project minimizes the impacts to the wetland.

(D) Unavoidable impacts to wetlands and aquatic and riparian areas and their buffer zones shall be offset by deliberate restoration and enhancement or creation (wetlands only) measures as required by the completion of a SMA mitigation plan.

(h) Proposed uses and development within water resources and their buffer zones shall be evaluated for cumulative effects to natural resources and cumulative effects that are adverse shall be prohibited.

(3) Wildlife and Plants

(a) Protection of wildlife and plant areas and sites shall begin when proposed new development or uses are within 1000 feet of a rare wildlife or rare plant area or site. Rare wildlife areas are those areas depicted in wildlife and plant data and all Priority Habitats and endemic plant species listed in 350-082-0690 tables 1 and 2. The approximate locations of rare wildlife and plant areas and sites are shown in wildlife and rare plant data.

(b) The Executive Director shall submit site plans (of uses that are proposed within 1,000 feet of a rare wildlife or rare plant area or site) for review to the Forest Service and the appropriate state agencies (Oregon Department of Fish and Wildlife or the Washington Department of Fish and Wildlife for wildlife issues and by the Oregon Biodiversity Information Center or Washington Natural Heritage Program for plant issues).

(c) The Forest Service wildlife biologists and botanists, in consultation with the appropriate state biologists, shall review the site plan and their field survey records. They shall:

(A) Identify and verify the precise location of the wildlife or plant area or site,

(B) Determine if a field survey will be required,

(C) Determine, based on the biology and habitat requirements of the affected wildlife or plant species, if the proposed use would compromise the integrity and function of or result in adverse effects (including cumulative effects) to the wildlife and plant area or site. This would include considering the time of year when wildlife and plant species are sensitive to disturbance, such as nesting, rearing seasons, or flowering season, and,

(D) Delineate the undisturbed 200-foot buffer on the site plan for rare plants or the appropriate buffer for rare wildlife areas or sites, including nesting, roosting, and perching sites.

(i) Buffer zones can be reconfigured if a project applicant demonstrates the integrity and function of the buffer zones is maintained, the total buffer area on the development proposal is not decreased, the width reduction shall not occur within another buffer, and the buffer zone width is not reduced more than 50% at any particular location. Such features as intervening topography, vegetation, man-made features, natural plant or wildlife habitat boundaries, and flood plain characteristics could be considered.

(ii) Requests to reduce buffer zones shall be considered if an appropriate professional (botanist, plant ecologist, wildlife biologist, or hydrologist), hired by the project applicant, identifies the precise location of the rare wildlife or plant or water resource describes the biology of the rare wildlife or plant or hydrologic condition of the water resource, and demonstrates that the proposed use will not have any negative effects, either direct or indirect, on the affected wildlife or plant and their surrounding habitat that is vital to their long-term survival or to the water resource and its long term function.

(iii) The Executive Director shall submit all requests to re-configure rare wildlife or plant or water resource buffers to the Forest Service and the appropriate state agencies for review. All written comments shall be included in the record of application and based on the comments from the state and federal agencies, the Executive Director will make a final decision on whether the reduced buffer zone is justified. If the final decision contradicts the comments submitted by the federal and state agencies, the Executive Director shall justify how the opposing conclusion was reached

(d) The Executive Director, in consultation with the state and federal wildlife biologists and botanists, shall use the following criteria in reviewing and evaluating the site plan to ensure that the proposed development or uses do not compromise the integrity and function of or result in adverse effects to the wildlife and plant area or site:

(A) Published guidelines regarding the protection and management of the affected wildlife or plant species. Examples include: the Oregon Department of Forestry management guidelines for osprey and great blue heron and the Washington Department of Fish and Wildlife guidelines for a variety of species, including the western pond turtle, the peregrine falcon, and the Larch Mountain salamander.

(B) Physical characteristics of the subject parcel and vicinity, including topography and vegetation.

(C) Historic, current, and proposed uses in the vicinity of the rare wildlife or plant area or site.

(D) Existing condition of the wildlife or plant area or site and the surrounding habitat of the area or site.

(E) In areas of winter range, habitat components, such as forage, and thermal cover, important to the viability of the wildlife must be maintained or, if impacts are to occur, enhancement must mitigate the impacts so as to maintain overall values and function of winter range.

(F) The site plan is consistent with published guidance documents such as "Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources" (Oregon Department of Fish and Wildlife, 2008, or most recent version) and Washington's Aquatic Habitat Guidelines (2002, or most recent version).

(G) The site plan activities coincide with periods when fish and wildlife are least sensitive to disturbance. These would include, among others, nesting and brooding periods (from nest building to fledgling of young) and those periods specified.

(H) The site plan illustrates that new development and uses, including bridges, culverts, and utility corridors, shall not interfere with fish and wildlife passage.

(I) Maintain, protect, and enhance the integrity and function of Priority Habitats as listed in 350-082-0690 Table 1 -Priority Habitats. This includes maintaining structural, species, and age diversity, maintaining connectivity within and between plant communities, and ensuring that cumulative impacts are considered in documenting integrity and function.

(e) The wildlife and plant protection process may conclude if the Executive Director, in consultation with the Forest Service and state wildlife agency or heritage program, determines the rare wildlife area or site is not active, the proposed use is not within the buffer zones and would not compromise the integrity of the wildlife or plant area or site, or the proposed use is within the buffer and could be easily moved out of the buffer by simply modifying the project proposal (site plan modifications). If the project applicant accepts these recommendations, the Executive Director shall incorporate them into the final decision and the wildlife and plant protection process may conclude.

(f) If the above measures fail to eliminate the adverse effects, the proposed project shall be prohibited, unless the project applicant can meet the practicable alternative test in 350-082-0680 and prepare a mitigation plan to offset the adverse effects by deliberate restoration and enhancement.

(g) The Executive Director shall submit a copy of all field surveys (if completed) and mitigation plans to the Forest Service and appropriate state agencies. The Executive Director shall include all comments in the record of application and address any written comments submitted by the state and federal wildlife agency and heritage programs in the Executive Director's decision.

(h) Based on the comments from the state and federal wildlife agency and heritage program, the Executive Director shall make a final decision on whether the proposed use would be consistent with the wildlife and plant policies and guidelines. If the final decision contradicts the comments submitted by the state and federal wildlife agency and heritage program, the Executive Director shall justify how the opposing conclusion was reached.

(i) The Executive Director shall require the project applicant to revise the mitigation plan as necessary to ensure that the proposed use would not adversely affect a rare wildlife or plant area or site.

(j) Proposed uses and developments within 1,000 feet of rare wildlife areas and sites or within 1,000 feet of rare plants shall be evaluated for cumulative effects to natural resources and cumulative effects that are adverse shall be prohibited.

(4) Soil Productivity. Soil productivity shall be protected using the following guidelines:

(a) The application shall include a description or illustration showing the mitigation measures to control soil erosion and stream sedimentation.

(b) New developments and land uses shall control all soil movement within the area shown on the site plan.

(c) The soil area disturbed by new development or land uses, except for new cultivation, shall not exceed 15 percent of the project area.

(d) Within one year of project completion, 80 percent of the project area with surface disturbance shall be established with effective native ground cover species or other soil-stabilizing methods to prevent soil erosion until the area has 80 percent vegetative cover.

(5) SMA Mitigation Plans

(a) Mitigation Plan shall be prepared when:

(A) The proposed development or use is within a buffer zone (water resources, or wildlife or plant areas or sites).

(B) There is no practicable alternative as determined by 350-082-0680.

(b) In all cases, mitigation plans are the responsibility of the applicant and shall be prepared by an appropriate professional (botanist or ecologist for plant sites, a wildlife or fish biologist for wildlife or fish sites, and a qualified professional for water resource sites).

(c) The primary purpose of this information is to provide a basis for the project applicant to redesign the proposed use in a manner that protects the identified water resources, and rare wildlife or plant areas and sites, that maximizes their development options, and that mitigates, through restoration, enhancement, creation, and replacement measures, impacts to the water resources and wildlife and plant area or site and buffer zones.

(d) The applicant shall submit the mitigation plan to the Executive Director. The Executive Director shall submit a copy of the mitigation plan to the Forest Service, and appropriate state agencies. If the final decision contradicts the comments submitted by the state and federal wildlife agency and heritage program, the Executive Director shall justify how the opposite conclusion was reached.

(e) A project applicant shall demonstrate sufficient fiscal, technical, and administrative competence to successfully execute a mitigation plan involving wetland creation.

(f) Mitigation plans shall include maps, photographs, and text. The text shall:

(A) Describe the biology and function of the protected resources (e.g., wildlife or plant species, or wetland) that will be affected by a proposed use. An ecological assessment of the protected resource and the condition of the resource that will result after restoration shall be required. Reference published protection and management guidelines.

(B) Describe the physical characteristics of the subject parcel, past, present, and future uses, and the past, present, and future potential impacts to the protected resources. Include the size, scope, configuration, or density of new uses being proposed within the buffer zone.

(C) Explain the techniques that will be used to protect the protected resources and their surrounding habitat that will not be altered (for example, delineation of core habitat of the rare wildlife or plant species and key components that are essential to maintain the long-term use and integrity of the wildlife or plant area or site).

(D) Show how restoration, enhancement, and creation measures will be applied to ensure that the proposed use results in minimum feasible impacts to protected resources, their buffer zones, and associated habitats.

(E) Show how the proposed restoration, enhancement, or creation mitigation measures are NOT alternatives to avoidance. A proposed development or land use must first avoid a protected resource, and only if this is not possible should restoration, enhancement, or creation be considered as mitigation. In reviewing mitigation plans, the Executive Director, appropriate state agencies, and Forest Service shall critically examine all proposals to ensure that they are indeed last resort options.

(g) At a minimum, a project applicant shall provide to the Executive Director a progress report every three years until all conditions are met. The progress report shall document milestones, successes, problems, and contingency actions. Photographic monitoring stations shall be established and photographs shall be used to monitor all mitigation progress.

(h) A final monitoring report shall be submitted to the Executive Director for review upon completion of the restoration, enhancement, created, or replacement activity. This monitoring report shall document successes, problems encountered, resource recovery, status of any rare wildlife or plant species and shall demonstrate the success of restoration or enhancement actions. The Executive Director shall submit copies of the monitoring report to the Forest Service; which shall offer technical assistance to the Executive Director in helping to evaluate the completion of the mitigation plan. In instances where restoration and enhancement efforts have failed, the monitoring process shall be extended until the applicant satisfies the restoration and enhancement guidelines.

(i) Mitigation measures to offset impacts to resources and buffers shall result in no net loss of water quality; natural drainage; fish, wildlife, and plant habitat; and water resources by addressing the following:

(A) Restoration and enhancement efforts shall be completed no later than one year after the protected resource or buffer zone has been altered or as soon thereafter as is practicable.

(B) All natural vegetation within the buffer zone shall be retained to the greatest extent practicable. Appropriate protection and maintenance techniques shall be applied, such as fencing, conservation buffers, livestock management, and noxious weed control. Within five years, at least 75 percent of the replacement vegetation shall survive. All plantings shall be with native plant species that replicate the original vegetation community.

(C) Habitat that will be affected by either temporary or permanent uses shall be rehabilitated to a natural condition. Habitat shall be replicated in composition, structure, and function, including tree, shrub and herbaceous species, snags, pool-riffle ratios, substrata, and structures, such as large woody debris and boulders.

(D) If no net loss is not feasible or practical because of technical constraints, a protected resource of equal or greater benefit may be substituted, provided that no net loss of protected resource functions occurs and provided the Executive Director, in consultation with the appropriate state and federal agencies, determines that such substitution is justified.

(E) Rare plants that will be altered shall be transplanted or replaced, to the maximum extent practicable. Replacement is used here to mean the establishment of a particular plant species in areas of suitable habitat not affected by new uses. Replacement may be accomplished by seeds, cuttings, or other appropriate methods. Replacement shall occur as close to the original plant site as practicable. The project applicant shall ensure that at least 75 percent of the replacement plants survive three years after the date they are planted.

(F) Nonstructural controls and natural processes shall be used to the greatest extent practicable.

(i) Bridges, roads, pipeline and utility corridors, and other water crossings shall be minimized and should serve multiple purposes and properties.

(ii) Stream channels shall not be placed in culverts unless absolutely necessary for property access. Bridges are preferred for water crossings to reduce disruption to hydrologic and biologic functions. Culverts shall only be permitted if there are no practicable alternatives as demonstrated by 350-082-0680.

(iii) Fish passage shall be protected from obstruction.

(iv) Restoration of fish passage should occur wherever possible.

(v) Show location and nature of temporary and permanent control measures that shall be applied to minimize erosion and sedimentation when riparian areas are disturbed, including slope netting, berms and ditches, tree protection, sediment barriers, infiltration systems, and culverts.

(vi) Groundwater and surface water quality will not be degraded by the proposed use. Natural hydrologic conditions shall be maintained, restored, or enhanced in such a manner that replicates natural conditions, including current patterns (circulation, velocity, volume, and normal water fluctuation), natural stream channel and shoreline dimensions and materials, including slope, depth, width, length, cross-sectional profile, and gradient.

(vii) Those portions of a proposed use that are not water-dependent or that have a practicable alternative shall be located outside of stream, pond, and lake buffer zones.

(viii) Streambank and shoreline stability shall be maintained or restored with natural revegetation.

(ix) The size of restored, enhanced, and created wetlands shall equal or exceed the following ratios. The first number specifies the required acreage of replacement wetlands, and the second number specifies the acreage of wetlands altered.

(I) Restoration: 2:1

(II) Creation: 3:1

(III) Enhancement: 4:1

(G) Wetland creation mitigation shall be deemed complete when the wetland is self-functioning for five consecutive years. Self-functioning is defined by the expected function of the wetland as written in the mitigation plan. The monitoring report shall be submitted to the Executive Director to ensure compliance. The Forest Service, in consultation with appropriate state agencies, shall extend technical assistance to the Executive Director to help evaluate such reports and any subsequent activities associated with compliance.

(H) Wetland restoration or enhancement can be mitigated successfully by donating appropriate funds to a non-profit wetland conservancy or land trust with explicit instructions that those funds are to be used specifically to purchase protection easements or fee title protection of appropriate wetlands acreage in or adjacent to the Columbia River Gorge meeting the ratios given above in subsection (F)(ix) above. These transactions shall be explained in detail in the Mitigation Plan and shall be fully monitored and documented in the monitoring report.

Or. Admin. Code § 350-082-0670

CRGC 1-2022, adopt filed 03/02/2022, effective 5/1/2022

Statutory/Other Authority: ORS 196.150, RCW 43.97.015, 16 USC § 544f(l)

Statutes/Other Implemented: ORS 196.150, RCW 43.97.015, 16 USC § 544f(l)