Or. Admin. Code § 635-415-0020

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

Section 635-415-0020 - Implementation of Department Habitat Mitigation Requirements

(1) The Department shall provide mitigation consistent with the goals and standards of OAR 635-415-0025 for Department development actions that impact fish and wildlife habitat.

(2) The Department shall require mitigation consistent with the goals and standards of OAR 635-415-0025 for development actions that impact fish and wildlife habitat for which the Department has statutory authority to require mitigation as a condition of a permit or order.

(3) The Department shall recommend mitigation consistent with the goals and standards of OAR 635-415-0025 for development actions which impact fish and wildlife habitat for other than Department actions when:

(a) Federal or state environmental laws or land use regulations authorize or require mitigation for impacts to fish and wildlife; or

(b) Local environmental laws or land use regulations authorize or require mitigation for impacts to fish and wildlife habitat; or

(c) The proposed development action requires either an amendment to an acknowledged comprehensive plan or land use regulation relating to fish and wildlife habitat protection, or adoption of a new land use regulation relating to fish and wildlife habitat protection, and the Department believes that mitigation is necessary to comply with Statewide Planning Goal 5 or other applicable statewide planning goal requirements for fish and wildlife habitat protection.

(4) The Department's recommendations or requirements for mitigating the impacts of a development action shall be based on the following considerations:

(a) The location, physical and operational characteristics, and duration of the proposed development action; and

(b) The alternatives to the proposed development action; and

(c) The fish and wildlife species and habitats which will be affected by the proposed development action; and

(d) The nature, extent, and duration of impacts expected to result from the proposed development action.

(5) The Department shall require the project proponent to prepare a written mitigation plan approved by the Department if required by an ODFW implemented statute; or recommend or require a written plan approved by the Department if the impacts of the proposed development action may, in the opinion of the Department, be so significant in nature, extent, or duration that mitigation measures to achieve the goals and standards of OAR 635-415-0025 cannot be identified without the evaluation that would be provided in a written mitigation plan.

(6) The Department may recommend or require the posting of a bond, or other financial instrument acceptable to the Department, to cover the cost of mitigation actions based on the nature, extent, and duration of the impact and/or the risk of the mitigation plan not achieving mitigation goals.

(7) The Department may consider the use of mitigation banks or payment-to-provide mitigation based on the nature, extent, and duration of the impact and/or the risk of the mitigation plan not achieving mitigation goals.

(a) The Department may consider the use of mitigation banks and payment-to-provide mitigation only for habitat categories two through six and only if they are consistent with the mitigation goals and standards identified in OAR 635-415-0025.

(b) The amount of payment-to-provide mitigation, recommended or required, shall include at a minimum the cost of property acquisition, mitigation actions, maintenance, monitoring, and any other actions needed for the long-term protection and management of the mitigation site.

(8) In addition to any other information that may be required by law, a written mitigation plan prepared for the Department shall:

(a) Include the information required in OAR 635-415-0020(4)(a)-(d); and

(b) Describe the mitigation actions which shall be taken to achieve the fish and wildlife habitat mitigation goals and standards of OAR 635-415-0025; and

(c) Describe and map the location of he development action and mitigation actions including the latitude and longitude, township, range, section, quartersection and county; and

(d) Complement and not diminish mitigation provided for previous development actions; and

(e) Include protocols and methods, and a reporting schedule for monitoring the effectiveness of mitigation measures. Monitoring efforts shall continue for a duration and at a frequency needed to ensure that the goals and standards in OAR 635-415-0025 are met, unless the Department determines that no significant benefit would result from such monitoring; and

(f) Provide for future modification of mitigation measures that may be required to meet the goals and standards of OAR 635-415-0025; and

(g) Be effective throughout the project life or the duration of project impacts whichever is greater.

(h) Contain mitigation plan performance measures including:

(A) Success Criteria. The mitigation plan must clearly define the methods to meet mitigation goals and standards and list the criteria for measuring success;

(B) Criteria and a timeline for formal determination that the mitigation goals and standards have been met;

(C) Provisions for long-term protection and management of the site if appropriate;

(D) A reporting schedule for identifying progress toward achieving the mitigation goals and standards and any modification of mitigation measures. Mitigation goals and standards must be achieved within a reasonable time frame to benefit the affected fish and wildlife species.

(9) The requirement for a mitigation plan pursuant to OAR 635-415-0020(8) may, at the discretion of the Department, be partially or entirely fulfilled by incorporation of environmental assessments or environmental impact statements prepared for the proposed development action; or by local government land use regulations which implement the requirements of Statewide Planning Goals 5, 8, 15, 16, or 17 pertaining to fish and wildlife habitat protection.

(10) The project proponent is responsible for the expenses of developing, evaluating, and implementing the mitigation plan and monitoring the mitigation site; however, to the extent that available resources allow, the Department may take one or more of the following actions to assist in the development of a mitigation plan:

(a) Identify fish and wildlife species and habitats to be affected by the proposed development action;

(b) Determine the Habitat Categories that are likely to be affected by the proposed development action;

(c) Identify the nature, extent, and duration of potential impacts upon fish and wildlife habitat resulting from the proposed development action;

(d) Identify mitigation measures to achieve the goals and standards of OAR 635-415-0025.

(e) Furnish any information or counsel to further the purpose of OAR Chapter 635 Division 415

Or. Admin. Code § 635-415-0020

FWC 133-1991, f. & cert. ef. 11-19-91; DFW 47-1998, f. & cert. ef. 6-15-98; DFW 25-2000, f. 4-26-00, cert. ef. 5-1-00

Stat. Auth.: ORS 496.012, ORS 496.138, ORS 496.171, ORS 506.109 & ORS 506.119

Stats. Implemented: ORS 496.012, ORS 496.138, ORS 496.171, ORS 506.109 & ORS 506.119