Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Introduction. Greater Sage-Grouse (hereafter "sage-grouse") habitat is a unique
wildlife resource subject to a variety of threats across a broad, multi-state
region. Oregon's sage-grouse habitat is comprised of a combination of public
land managed by the federal government and nonfederal land generally in private
ownership. Managing private and other nonfederal land for the best possible
outcomes requires partnership and cooperation among many stakeholders.
Accordingly, private and other nonfederal lands are strongly encouraged to
participate in a Candidate Conservation Agreement with Assurances program.
Voluntary conservation efforts of this nature are recognized by the State of
Oregon as a critical part in recovering the breeding population targeted by
Oregon's Greater Sage-Grouse Conservation Assessment and Strategy for Oregon.
Beyond voluntary efforts it remains necessary to provide a regulatory framework
that offers fairness, predictability and certainty for all involved parties.
Engagement on the part of county government is critical to Oregon's efforts to
address possible impacts from future development.
(2) Exempt activities.
(a) Those activities that do not require
governmental approval, including farm use as defined in ORS
215.203(2), are
exempt from the provisions of this rule. State agency permits necessary to
facilitate a farm use, including granting of new water right permits by the
Oregon Water Resources Department (OWRD), are also exempt from the provisions
of this rule.
(b) Any energy
facility that submitted a preliminary application for site certificate pursuant
to ORS 469.300 et seq. on or before the
effective date of this rule is exempt from the provisions of this rule.
Notwithstanding ORS 197.646(3),
this rule shall not be directly applicable to any land use decision regarding
that facility unless the applicant chooses otherwise. Similarly, any changes to
a local government's acknowledged comprehensive plan or land use ordinances
developed to achieve consistency with this rule shall not constitute
"applicable substantive criteria" pursuant to OAR 345-022-0030(3), unless they
are in effect on the date the applicant submits a preliminary application for
site certificate, unless the applicant chooses otherwise.
(c) Private and other nonfederal lands are
strongly encouraged to participate in a Candidate Conservation Agreement with
Assurances (CCAA) program. Voluntary conservation efforts of this nature are
recognized by the State of Oregon as a critical part in recovering the breeding
population targeted by the Greater Sage-Grouse Conservation Assessment and
Strategy for Oregon. Uses identified in CCAA agreements are relieved from the
provisions of this rule except that conflicting uses identified in section (7)
will be subject to sections (9) to (11) in all instances regardless of
enrollment status.
(3)
Definitions. For purposes of this rule, the definitions in OAR 635-140-0002 and
in the glossary of the "Greater Sage-Grouse Conservation Assessment and
Strategy for Oregon" adopted by the Oregon Fish and Wildlife Commission on
April 22, 2011 (copies of the plan are available through the Oregon Department
of Fish and Wildlife (ODFW)) shall apply. In addition, the following
definitions shall apply:
(a) "Areas of High
Population Richness" means mapped areas of breeding and nesting habitat within
core habitat that support the 75th percentile of breeding bird densities (i.e.
the top 25 percent). Please see Exhibit A.
(b) "Candidate Conservation Agreement with
Assurances" means a formal agreement between the United States Fish and
Wildlife Service (USFWS) and one or more parties to address the conservation
needs of proposed or candidate species, or species likely to become candidates,
before they become listed as endangered or threatened. Landowners voluntarily
commit to conservation actions that will help stabilize or restore the species
with the goal that listing under the Federal Endangered Species Act will become
unnecessary.
(c) "Core areas" means
mapped sagebrush types or other habitats that support sage-grouse annual life
history requirements that are encompassed by areas:
(A) Of very high, high, and moderate lek
density strata;
(B) Where low lek
density strata overlap local connectivity corridors; or
(C) Where winter habitat use polygons overlap
with either low lek density strata, connectivity corridors, or occupied
habitat. Core area maps are maintained by ODFW.
(d) "Development action" means any human
activity subject to regulation by local, state, or federal agencies that could
result in the loss of significant sage-grouse habitat. Development actions may
include but are not limited to, construction and operational activities of
local, state, and federal agencies. Development actions also include subsequent
repermitting of existing activities proposing new impacts beyond current
conditions.
(e) "Direct impact"
means an adverse effect of a development action upon significant sage-grouse
habitat which is proximal to the development action in time and place.
(f) "Disturbance" includes natural
threats to sage-grouse habitat such as: wildfire, juniper infestation and the
spread of noxious weeds or human activities that can negatively affect
sage-grouse use of habitat either through changing the vegetation type or
condition, or displacement of sage-grouse use of an area. For purposes of this
rule only disturbance from human activities are considered.
(g) "General habitat" means occupied
(seasonal or year-round) sage-grouse habitat outside core and low density
habitats.
(h) "Indirect impacts"
means adverse effects to significant sage-grouse habitat that are caused by or
will ultimately result from an affected development activity. Indirect impacts
usually occur later in time or are removed in distance compared to direct
effects.
(i) "Large-scale
development" means uses that are: over 50 feet in height; have a direct impact
in excess of five acres; generate more than 50 vehicle trips per day; or create
noise levels of at least 70 dB at zero meters for sustained periods of time.
Uses that constitute large-scale development also require review by county
decision makers and are listed in one of the following categories identified in
the table attached to OAR 660-033-0120.
(A)
Commercial Uses.
(B) Mineral,
Aggregate, Oil and Gas Uses.
(C)
Transportation Uses.
(D)
Utility/Solid Waste Disposal Facilities.
(E) Parks/Public/Quasi-Public.
(j) "Lek" means an area where male
sage-grouse display during the breeding season to attract females (also
referred to as strutting-ground).
(k) "Low density areas" means mapped
sagebrush types or other habitats that support sage-grouse that are encompassed
by areas where:
(A) Low lek density strata
overlapped with seasonal connectivity corridors;
(B) Local corridors occur outside of all lek
density strata;
(C) Low lek density
strata occur outside of connectivity corridors; or
(D) Seasonal connectivity corridors occur
outside of all lek density strata. Low density area maps are maintained by
ODFW.
(l) "Mitigation
hierarchy" means an approach used by decision makers to consider development
proposals and is ordinarily comprised of a three step process:
(A) "Avoidance" is the first step in the
mitigation hierarchy and is accomplished by not taking a certain development
action or parts of that action.
(B)
"Minimization" is the second step in the mitigation hierarchy and is
accomplished by limiting the degree or magnitude of the development action and
its implementation.
(C)
"Compensatory mitigation" is the third step in the mitigation hierarchy and
means the replacement or enhancement of the function of habitat capable of
supporting sage-grouse in greater numbers than predicted to be impacted by a
development.
(m)
"Occupied Lek" means a lek that has been regularly visited by ODFW and has had
one or more male sage-grouse counted in one or more of the last seven
years.
(n) "Occupied Pending Lek"
means a lek that has not been counted regularly by ODFW in the last seven
years, but sage-grouse were present at ODFW's last visit.
(o) "Priority Areas for Conservation" (PACs)
means key habitats identified by state sage-grouse conservation plans or
through other sage-grouse conservation efforts (e.g., BLM Planning). In Oregon,
core area habitats are PACs.
(4) Local program development and direct
applicability of rule. Local governments may develop a program to achieve
consistency with this rule by following the standard process in OAR
660-023-0030, 660-023-0040 and 660-023-0050 and submitting the amendment to the
commission in the manner provided for periodic review under ORS
197.628 to
197.650 and OAR 660-025-0175.
Until the commission has acknowledged a county amendment to its comprehensive
plan and land use regulations to be in compliance with Goal 5 and equivalent to
this rule with regard to protecting sage-grouse habitat, sections (5) to (12)
shall apply directly to county land use decisions affecting significant
sage-grouse habitat. Once the commission has acknowledged a local government
program under this section, that program becomes the controlling county land
use document and sections (5) to (12) of this rule no longer apply
directly.
(5) Quality, Quantity and
Location. For purposes of this rule, sage-grouse habitat is only present in
Baker, Crook, Deschutes, Harney, Lake, Malheur and Union Counties. The location
of sage-grouse habitat within these counties shall be determined by following
the map produced by ODFW included as Exhibit B.
(6) Determination of Significance.
Significant sage-grouse habitat includes only lands protected under Statewide
Planning Goals 3 or 4 as of July 1, 2015 that are identified as:
(a) Core areas;
(b) Low density areas; and
(c) Lands within a general habitat area
located within 3.1 miles of an occupied or occupied-pending lek.
(d) The exact location of sage-grouse habitat
may be refined during consideration of specific projects but must be done in
consultation with ODFW.
(7) Conflicting uses. For purposes of
protecting significant sage-grouse habitat, conflicting uses are:
(a) Large-scale development; and
(b) Other activities, which require review by
county decision makers pursuant to OAR 660-033-0120 table and are proposed:
(A) In a core area within 4.0 miles of an
occupied or occupied-pending lek;
(B) In a low density area within 3.1 miles of
an occupied or occupied-pending lek; or
(C) In general habitat within 3.1 miles of an
occupied or occupied-pending lek.
(8) Pre-Application Conference. A county
should convene a pre-application conference prior to accepting an application
for a conflicting use in significant sage-grouse habitat. The pre-application
conference should include, at a minimum, the applicant, county planning staff
and local ODFW staff.
(9) Program
to achieve the goal of protecting significant sage grouse habitat in a core
area.
(a) A county may consider a large-scale
development in a core area upon applying disturbance thresholds and the
mitigation hierarchy as follows:
(A) A county
may consider a large-scale development that does not cause the one-percent
metering threshold described in section (16) or the three-percent disturbance
threshold described in section (17) to be exceeded.
(B) Avoidance. Before proceeding with
large-scale development activity that impacts a core area, the proponent must
demonstrate that reasonable alternatives have been considered and that the
activity or other action cannot avoid impacts within core area habitat. If the
proposed large-scale development can occur in another location that avoids both
direct and indirect impacts within core area habitat, then the proposal must
not be allowed unless it can satisfy the following criteria.
(i) It is not technically feasible to locate
the proposed large-scale development outside of a core area based on accepted
engineering practices, regulatory standards or some combination thereof. Costs
associated with technical feasibility may be considered, but cost alone may not
be the only consideration in determining that development must be located such
that it will have direct or indirect impacts on significant sage-grouse areas;
or
(ii) The proposed large-scale
development is dependent on a unique geographic or other physical feature(s)
that cannot be found on other lands; and
(iii) If either subparagraph (9)(a)(B)(i) or
(9)(a)(B)(ii) is found to be satisfied the county must also find that the
large-scale development will provide important economic opportunity, needed
infrastructure, public safety benefits or public health benefits for local
citizens or the entire region.
(C) Minimization. If the proposed use cannot
be sited by avoiding a core area altogether, including direct and indirect
impacts, it shall be located to minimize the amount of such habitat directly or
indirectly disturbed, and to minimize fragmentation of the core area(s) in
question by locating the development adjacent to existing development and at
the edge of the core area when possible. Uses should minimize impacts through
micro-siting, limitations on the timing of construction or use, or both, and
methods of construction. Minimizing impacts from large-scale development in
core habitat shall also ensure direct and indirect impacts do not occur in
known areas of high population richness within a given core area, unless a
project proponent demonstrates, by a preponderance of the evidence, that such
an approach is not feasible. Costs associated with minimization may be
considered, but cost alone may not be the only consideration in determining
that location of development cannot further minimize direct or indirect impacts
to core areas.
(D) Compensatory
Mitigation. To the extent that a proposed large-scale development will have
direct or indirect impacts on a core area after application of the avoidance
and minimization standards and criteria, above, the permit must be conditioned
to fully offset the direct and indirect impacts of the development to any core
area. he required compensatory mitigation must comply with OAR chapter 635,
division 140.
(b) A
county may approve a conflicting use as identified at subsection (7)(b) above
upon either:
(A) Receiving confirmation from
ODFW that the proposed conflicting use does not pose a threat to significant
sage-grouse habitat or the way sage-grouse use that habitat; or
(B) Conditioning the approval based on ODFW
recommendations, including minimization techniques and compensatory mitigation,
if necessary, to resolve threats to significant sage-grouse habitat.
(10) Program to achieve
the goal of protecting significant sage-grouse habitat in a low density area.
(a) A county may approve a large-scale
development in a low density area upon applying the mitigation hierarchy as
follows:
(A) Avoidance. Before proceeding
with large-scale development activity that impacts a low density area, the
proponent must demonstrate that reasonable alternatives have been considered
and that the activity or other action cannot avoid impacts within a low density
area. If the proposed large-scale development can occur in another location
that avoids both direct and indirect impacts within a low density area, then
the proposal must not be allowed unless it can satisfy the following criteria:
(i) It is not technically or financially
feasible to locate the proposed large-scale development outside of a low
density area based on accepted engineering practices, regulatory standards,
proximity to necessary infrastructure or some combination thereof; or
(ii) The proposed large-scale
development is dependent on geographic or other physical feature(s) found in
low density habitat areas that are less common at other locations, or it is a
linear use that must cross significant sage-grouse habitat in order to achieve
a reasonably direct route.
(B) Minimization. If the proposed use cannot
be sited by avoiding a low density area altogether, including direct and
indirect impacts, it shall be located to minimize the amount of such habitat
directly or indirectly disturbed, and to minimize fragmentation of the low
density area(s) in question by locating the development adjacent to existing
development and at the edge of the low density area when possible. Uses should
minimize impacts through micro-siting, limitations on the timing of
construction or use, or both, and methods of construction.
(C) Compensatory Mitigation. Required
consistent with the provisions of paragraph (9)(a)(D) above.
(b) A county may approve a
conflicting use as identified at subsection (7)(b) above when found to be
consistent with the provisions of subsection (9)(b).
(11) Program to achieve the goal of
protecting significant sage-grouse habitat on general habitat.
(a) A county may approve a large-scale
development on significant sage-grouse habitat in general habitat upon
requiring:
(A) General Habitat Consultation.
Minimizing impacts from development actions in general habitat shall include
consultation between the development proponent and ODFW that considers and
results in recommendations on how to best locate, construct or operate the
development action so as to avoid or minimize direct and indirect impacts on
significant sage-grouse habitat within the area of general habitat. A county
shall attach ODFW recommendations as a condition of approval; and
(B) Compensatory Mitigation. Required
consistent with the provisions of paragraph (9)(a)(D) above.
(b) A county may approve a
conflicting use identified in subsection (7)(b) above when found to be
consistent with the provisions of subsection (9)(b).
(12) Especially Unique Local Economic
Opportunity. A county may approve a large-scale development proposal that does
not meet the avoidance test for significant sage-grouse habitat if the county
determines that the overall public benefits of the proposal outweigh the damage
to significant sage-grouse habitat. Requirements for minimization and
compensatory mitigation continue to apply and attempts should be made to avoid
areas of high population richness, if possible. The county shall make this
balancing determination only when the proposal involves an economic opportunity
that will provide a number of permanent, full-time jobs, not including
construction activities, paying at least 150 percent of average county wages
sufficient to increase the amount of total private nonfarm payroll employment
by at least 0.5 percent over the figure included in the most recent data
available from the Oregon Department of Employment rounded down to the nearest
whole number. The applicant has the burden to show that the overall public
benefits outweigh the damage to the significant sage-grouse habitat. This
provision may be exercised by each effected county once during every ten-year
period beginning on the effective date of this rule. A county is also free not
to approve a proposal submitted under this section.
(13) A proposal to up-zone lands containing
significant sage-grouse habitat to a greater development potential than
otherwise allowed under Goals 3 and 4 shall follow the ordinary Goal 5 process
at OAR 660-023-0030 to 660-023-0050. Furthermore, up-zoning lands in a core
area shall be considered a direct impact and count towards the three percent
disturbance threshold pursuant to section (17) below.
(14) Landscape-Level Consideration. The
standards in sections (9), (10) and (11) above, are designed to minimize the
amount of future impacts from human sources to significant sage-grouse habitat
areas. Consistent with available science concerning the relation between human
activities and sage-grouse population levels, the department will monitor
direct impacts in core areas in each of the PACs shown in Exhibit (C).
(15) Central Registry. The
department will work with the counties identified in section (5), ODFW, the
Bureau of Land Management (BLM), and USFWS to maintain a central registry,
tracking human disturbance from existing (baseline) and all new development
affecting core areas. In addition to serving as partners in maintaining the
central registry, counties must report all development land use permits for all
uses within a core area to the department. The registry will include baseline
calculations of direct impact levels consistent with the approach identified by
the BLM. The percentage figures included in Exhibit D establish the baseline
for human disturbance existing on the effective date of this rule. If better
information becomes available, the commission may revise the baseline subject
to a rule amendment that is coordinated with the counties identified in section
(5) and other interested parties. Counties may establish more refined, project
specific data to replace the baseline figures so long as all counties utilize a
common methodology. Each year the department shall report to the commission the
amount of new direct impacts in each PAC. The report shall be coordinated with
and made available to all affected counties.
(16) Metering. This rule is intended to
ensure that the area of direct impact levels in any PAC, including energy
facilities exempted under subsection (2)(b), does not increase by an amount
greater than 1.0 percent of the total area of the PAC in any ten-year period.
The initial period shall commence upon the effective date of this rule and
continue for ten consecutive years, where upon the process shall be
successively repeated. The commission will consider revisions to this rule if
the department's yearly reports required by section (15) indicate that the
development trends in any PAC indicate that the 1.0 percent direct impact
threshold is in jeopardy of being exceeded before the ten-year period has
expired. Any proposal to amend this rule undertaken by the department shall be
developed in coordination with all affected counties and other stakeholders.
(17) Disturbance Threshold. This
rule is intended to ensure that direct impact level, including energy
facilities exempted under subsection (2)(b), does not exceed three percent of
the total area in any PAC. If this three-percent threshold is approached, then
the department must report that situation to the commission along with a
proposal to amend this rule to adapt the standards and criteria such that the
threshold is not exceeded.
(18)
State agency coordination programs. All state agencies that carry out or that
permit conflicting uses in core area, low density area, or significant general
habitat including but not limited to OWRD, Oregon Department of Transportation,
Department of State Lands, Department of Geology and Mineral Industries, Oregon
Department of Energy and the Energy Facility Siting Council, and Department of
Environmental Quality must report the proposed development to the department,
along with an estimate of the direct impact of the development. In addition, to
the extent not regulated by a county, such development, other than the issuance
of water rights, the expansion of cultivation, and other farm uses under ORS
215.203(2),
must meet the requirements of paragraph (9)(a)(D) of this rule.
(19) Scheduled Review. The department shall
commence a review of these rules no later than June 30, 2020 and, if determined
to be necessary, recommend revisions to achieve the policy objectives found
herein. Furthermore, should the species become listed under the Federal
Endangered Species Act, the commission shall consider whether continued
application of this rule is necessary. Should the rule remain applicable and
the species is de-listed the commission shall consider whether continued
application of this rule is necessary.
Exhibit referenced are not included in rule text.
Click here for PDF copy
of table(s)
Stat. Auth.: ORS
197.040
Stats. Implemented: ORS
197.040
