Current through Register Vol. 63, No. 3, March 1, 2024
(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
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