Current through Register Vol. 63, No. 3, March 1, 2024
(1) For
the purposes of this rule, the following definitions apply:
(a) "Fish habitat" means those areas upon
which fish depend in order to meet their requirements for spawning, rearing,
food supply, and migration.
(b)
"Riparian area" is the area adjacent to a river, lake, or stream, consisting of
the area of transition from an aquatic ecosystem to a terrestrial
ecosystem.
(c) "Riparian corridor"
is a Goal 5 resource that includes the water areas, fish habitat, adjacent
riparian areas, and wetlands within the riparian area boundary.
(d) "Riparian corridor boundary" is an
imaginary line that is a certain distance upland from the top bank, for
example, as specified in section (5) of this rule.
(e) "Stream" is a channel such as a river or
creek that carries flowing surface water, including perennial streams and
intermittent streams with defined channels, and excluding man-made irrigation
and drainage channels.
(f)
"Structure" is a building or other major improvement that is built,
constructed, or installed, not including minor improvements, such as fences,
utility poles, flagpoles, or irrigation system components, that are not
customarily regulated through zoning ordinances.
(g) "Top of bank" shall have the same meaning
as "bankfull stage" defined in OAR 141-085-0010(12).
(h) "Water area" is the area between the
banks of a lake, pond, river, perennial or fish-bearing intermittent stream,
excluding man-made farm ponds.
(2) Local governments shall amend
acknowledged plans in order to inventory riparian corridors and provide
programs to achieve Goal 5 prior to or at the first periodic review following
the effective date of this rule, except as provided in OAR
660-023-0250(5).
(3) Local
governments shall inventory and determine significant riparian corridors by
following either the safe harbor methodology described in section (5) of this
rule or the standard inventory process described in OAR 660-023-0030 as
modified by the requirements in section (4) of this rule. The local government
may divide the riparian corridor into a series of stream sections (or reaches)
and regard these as individual resource sites.
(4) When following the standard inventory
process in OAR 660-023-0030, local governments shall collect information
regarding all water areas, fish habitat, riparian areas, and wetlands within
riparian corridors. Local governments may postpone determination of the precise
location of the riparian area on lands designated for farm or forest use until
receipt of applications for local permits for uses that would conflict with
these resources. Local governments are encouraged, but not required, to conduct
field investigations to verify the location, quality, and quantity of resources
within the riparian corridor. At a minimum, local governments shall consult the
following sources, where available, in order to inventory riparian corridors
along rivers, lakes, and streams within the jurisdiction:
(a) Oregon Department of Forestry stream
classification maps;
(b) United
States Geological Service (USGS) 7.5-minute quadrangle maps;
(c) National Wetlands Inventory
maps;
(d) Oregon Department of Fish
and Wildlife (ODFW) maps indicating fish habitat;
(e) Federal Emergency Management Agency
(FEMA) flood maps; and
(f) Aerial
photographs.
(5) As a
safe harbor in order to address the requirements under OAR 660-023-0030, a
local government may determine the boundaries of significant riparian corridors
within its jurisdiction using a standard setback distance from all fish-bearing
lakes and streams shown on the documents listed in subsections (a) through (f)
of section (4) of this rule, as follows:
(a)
Along all streams with average annual stream flow greater than 1,000 cubic feet
per second (cfs) the riparian corridor boundary shall be 75 feet upland from
the top of each bank.
(b) Along all
lakes, and fish-bearing streams with average annual stream flow less than 1,000
cfs, the riparian corridor boundary shall be 50 feet from the top of
bank.
(c) Where the riparian
corridor includes all or portions of a significant wetland as set out in OAR
660-023-0100, the standard distance to the riparian corridor boundary shall be
measured from, and include, the upland edge of the wetland.
(d) In areas where the top of each bank is
not clearly defined, or where the predominant terrain consists of steep cliffs,
local governments shall apply OAR 660-023-0030 rather than apply the safe
harbor provisions of this section.
(6) Local governments shall develop a program
to achieve Goal 5 using either the safe harbor described in section (8) of this
rule or the standard Goal 5 ESEE process in OAR 660-023-0040 and 660-023-0050
as modified by section (7) of this rule.
(7) When following the standard ESEE process
in OAR 660-023-0040 and 660-023-0050, a local government shall comply with Goal
5 if it identifies at least the following activities as conflicting uses in
riparian corridors:
(a) The permanent
alteration of the riparian corridor by placement of structures or impervious
surfaces, except for:
(A) Water-dependent or
water-related uses; and
(B)
Replacement of existing structures with structures in the same location that do
not disturb additional riparian surface area; and
(b) Removal of vegetation in the riparian
area, except:
(A) As necessary for restoration
activities, such as replacement of vegetation with native riparian
species;
(B) As necessary for the
development of water-related or water-dependent uses; and
(C) On lands designated for agricultural or
forest use outside UGBs.
(8) As a safe harbor in lieu of following the
ESEE process requirements of OAR 660-023-0040 and 660-023-0050, a local
government may adopt an ordinance to protect a significant riparian corridor as
follows:
(a) The ordinance shall prevent
permanent alteration of the riparian area by grading or by the placement of
structures or impervious surfaces, except for the following uses, provided they
are designed and constructed to minimize intrusion into the riparian area:
(A) Streets, roads, and paths;
(B) Drainage facilities, utilities, and
irrigation pumps;
(C) Water-related
and water-dependent uses; and
(D)
Replacement of existing structures with structures in the same location that do
not disturb additional riparian surface area.
(b) The ordinance shall contain provisions to
control the removal of riparian vegetation, except that the ordinance shall
allow:
(A) Removal of non-native vegetation
and replacement with native plant species; and
(B) Removal of vegetation necessary for the
development of water-related or water-dependent uses;
(c) Notwithstanding subsection (b) of this
section, the ordinance need not regulate the removal of vegetation in areas
zoned for farm or forest uses pursuant to statewide Goals 3 or 4;
(d) The ordinance shall include a procedure
to consider hardship variances, claims of map error, and reduction or removal
of the restrictions under subsections (a) and (b) of this section for any
existing lot or parcel demonstrated to have been rendered not buildable by
application of the ordinance; and
(e) The ordinance may authorize the permanent
alteration of the riparian area by placement of structures or impervious
surfaces within the riparian corridor boundary established under subsection
(5)(a) of this rule upon a demonstration that equal or better protection for
identified resources will be ensured through restoration of riparian areas,
enhanced buffer treatment, or similar measures. In no case shall such
alterations occupy more than 50 percent of the width of the riparian area
measured from the upland edge of the corridor.
Stat. Auth.: ORS 183 & 197
Stats. Implemented: ORS
197.040 &
197.225 -
197.245
