(5) Uses Not Allowed
Outright or Listed in Guidelines (3)(a) and (4)(a)
(a) Uses that are not allowed outright or
listed in subsections (3)(a) and (4)(a) above, may be allowed in water
resources (except wetlands) and in all water resources buffer zones (including
wetland buffer zones), subject to compliance with 350-082-0600 through
350-082-0720 and subsection (b) below. These provisions do not apply to uses
listed in subsections (3)(a) and (4)(a) that cannot meet the criteria in
subsections (3)(b) and (4)(b).
(b)
The uses identified in subsection (a) above may be allowed only if they meet
all of the following criteria:
(A) The
proposed use is water-dependent, or is not water-dependent but has no
practicable alternative as determined by 350-082-0680.
(B) The proposed use is in the public
interest. All of the following factors shall be considered when determining if
a proposed use is in the public interest:
(i)
The extent of public need for the proposed use. For uses in wetlands, public
need is limited to uses necessary to alleviate a current public safety issue
supported by evidence establishing the safety issue.
(ii) The extent and permanence of beneficial
or detrimental effects that the proposed use may have on the public and private
uses for which the property is suited.
(iii) The functions and size of the water
resource that may be affected.
(iv)
The economic value of the proposed use to the general area.
(v) The ecological value of the water
resource and probable effect on public health and safety, fish, plants, and
wildlife.
(C) Measures
will be applied to ensure that the proposed use results in the minimum feasible
alteration of the resource. As a starting point, the following measures shall
be considered when new development and uses are proposed in water resources or
buffer zones:
(i) Ecological functions,
contour, and hydrology shall be maintained. Nonstructural controls and natural
processes shall be used to the greatest extent possible.
(ii) Construction shall occur during periods
when fish and wildlife are least sensitive to disturbance. Work in streams,
ponds, and lakes shall be conducted during the periods specified in Oregon or
Washington state's published guidelines for in-water work, or as advised by the
applicable Department of Fish and Wildlife.
(iii) All vegetation shall be retained to the
greatest extent practicable, including wetland, aquatic, and riparian
vegetation.
(iv) Bridges, roads,
pipelines and utility corridors, and other water crossings shall be minimized
and should serve multiple purposes and properties.
(v) Stream channels shall not be placed in
culverts unless absolutely necessary for property access. Bridges are preferred
for water crossings to reduce disruption to streams, ponds, lakes, and their
banks. When culverts are necessary, oversized culverts with open bottoms that
maintain the channel's width and grade should be used. State agencies with
permitting responsibility for culverts shall be consulted.
(vi) Temporary and permanent control measures
shall be applied to minimize erosion and sedimentation when water resource
areas are disturbed, such as slope netting, berms and ditches, tree protection,
sediment barriers, infiltration systems, and culverts.
(vii) Measures shall be taken to prevent the
introduction or spread of invasive plants or aquatic species.
(D) Groundwater and surface-water
quality will not be degraded by the proposed use.
(E) Those portions of a proposed use that are
not water-dependent or that have a practicable alternative will not be located
in water resources or buffer zones.
(F) The proposed use complies with all
applicable federal, state, and local laws.
(G) Areas that are disturbed during
construction of the proposed use will be rehabilitated. When a project area
cannot be completely restored or rehabilitated, such as when a boat launch
permanently displaces aquatic and riparian areas, enhancement shall also be
required.
(H) Proposed uses in
water resources and their buffer zones shall be evaluated for adverse effects,
including cumulative effects, and adverse effects shall be
prohibited.
(I) Unavoidable impacts
to water resources will be offset through the deliberate restoration, creation,
or enhancement of impacted resources. Restoration, creation, and enhancement
are not alternatives to the guidelines listed above; they shall be used only as
a last resort to offset unavoidable water resource impacts.
(J) Restoration, creation, and enhancement
shall improve water quality, natural drainage, and fish and wildlife habitat of
the affected wetland, stream, pond, lake, or buffer zone. When a project area
has been disturbed in the past, it shall be rehabilitated to its natural
condition to the maximum extent practicable. The following water resource
guidelines shall apply:
(i) Impacts to
wetlands shall be offset by restoring or creating new wetlands or by enhancing
degraded wetlands. Wetlands restoration shall be the preferred approach when
wetlands are impacted.
(ii) Water
resources restoration and enhancement shall be conducted in accordance with a
wetlands compensation plan or water resources mitigation plan. Voluntary
enhancement project applications shall be encouraged. See 350-0820460 and Part
III, Chapter 4: Enhancement Strategies in the Management Plan.
(iii) Water resources shall be replanted with
native plant species that replicate the original vegetation
community.
(iv) Natural hydrologic
conditions shall be replicated, including current patterns, circulation,
velocity, volume, and normal water fluctuation.
(v) Natural stream channel and shoreline
dimensions shall be replicated, including depth, width, length, cross-sectional
profile, and gradient. Riparian areas shall be rehabilitated to their original
configuration, including slope and contour.
(vi) The bed of the affected aquatic area
shall be rehabilitated with materials appropriate for the channel and
hydrologic features.
(vii) Fish and
wildlife habitat features shall be replicated, including pool-riffle ratios,
substrata, and structural habitat features including large woody debris and
boulders.
(viii) Rehabilitation and
enhancement efforts shall be completed no later than 90 days after the water
resource or buffer zone has been altered, or as soon thereafter as is
practicable.
(ix) The size of
replacement 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
(x) Replacement wetlands shall replicate the
functions of the wetlands that will be altered such that improvement of
wetlands functions occurs.
(xi)
Replacement wetlands should replicate the type of wetland that will be altered.
If this standard is not feasible or practical because of technical constraints,
a wetland type of equal or greater benefit may be substituted, provided that
improvement of wetlands functions occurs.
(xii) Wetlands restoration, creation, or
enhancement should occur within 1,000 feet of the affected wetland. If this
guideline is not practicable because of physical, or technical constraints,
replacement shall occur within the same watershed and as close to the altered
wetland as practicable.
(xiii)
Restoration, creation, and enhancement efforts should be completed before a
water resource is altered. If it is not practicable to complete all
restoration, creation, and enhancement efforts before the water resource is
altered, these efforts shall be completed before the new use is occupied or
used.
(xiv) Five years after a
wetland is restored, created, or enhanced, or three years after a stream, pond,
lake, or riparian area is restored, at least 75 percent of the replacement
vegetation shall survive. The project applicant shall monitor the hydrology and
vegetation of the replacement water resource, provide reports, and shall take
corrective measures to ensure that it conforms with the approved wetlands
compensation plan or water resources mitigation plan and this
guideline.