applies to removal-fill that occurs
within waters of this state and applies to all forms of compensatory mitigation
(i.e., mitigation bank, in-lieu fee mitigation, advance mitigation, permittee
responsible mitigation, and payment in-lieu mitigation). The Department may
establish CM requirements other than those explicitly set forth in OAR
within areas covered by an approved Wetland
Conservation Plan or Advance Aquatic Resource Plan.
Principal Objectives for CM. For projects
where impacts to waters of this state cannot be avoided, CM will be required to
compensate for the reasonably expected adverse impacts in fulfillment of the
following principal objectives.
principal objectives of CM are to:
Replace functions and values lost at the removal-fill site;
(B) Provide local replacement for locally
important functions and values, where appropriate;
(C) Enhance, restore, create or preserve
waters of this state that are self-sustaining and minimize long-term
(D) Ensure the
siting of CM in ecologically suitable locations considering: local watershed
needs and priorities; appropriate landscape position for the waters types,
functions and values sought; connectivity to other habitats and protected
resources; and the absence of contaminants or conflicting adjacent land uses or
development trends that would compromise functions and values; and
(E) Minimize temporal loss of waters of this
state and their functions and values.
(b) Applicants must demonstrate how the
selected method of CM (i.e., mitigation bank, in-lieu fee mitigation, advance
mitigation, permittee-responsible mitigation and payment in-lieu mitigation)
addresses the principal objectives.
(a) Replacement for locally important
functions and values may be required.
(b) Projects that involve 0.20 acres or less
of permanent wetland impact may use mitigation banks, in-lieu fee, or payment
in-lieu mitigation without addressing the principal objectives set forth in
Section (2) of this rule, except when impacts are to Aquatic Resources of
in-lieu mitigation may not be used if appropriate mitigation bank or in-lieu
fee credits are available on the day that the public review period
(d) CM earthwork must be
completed within the same construction season as the authorized removal-fill
project. The Department may approve non-concurrent CM if the applicant clearly
demonstrates, in writing, the reason for the delay or that there is benefit to
the aquatic resources in doing so.
(e) CM involving the conversion of a water of
this state to a different type, HGM class or Cowardin class may not be approved
when the existing aquatic resource is in good condition, is an Aquatic Resource
of Special Concern, provides locally important functions or values, or supports
listed species or a rare plant community or communities.
(f) CM projects must not degrade areas with
existing high natural resource values (e.g., forested uplands).
(g) CM hydrology must be self-sustaining and
must not rely on features or facilities that require frequent and regular
long-term maintenance and management. For example, permanent water control
structures may be acceptable, whereas pumping from a groundwater well to
provide adequate hydrologic support is not acceptable.
Multiple Purpose CM. CM sites may fulfill
multiple purposes including storm water retention or detention, provided:
(A) All other CM requirements are
(B) No alteration or
management is required to maintain the functionality of the stormwater facility
that would degrade the CM functions and values;
(C) The stormwater entering the CM site has
been pretreated to the level necessary to assure that state water quality
standards and criteria are met in the mitigation area;
Construction of storm water facilities in
existing wetlands meets the criteria for enhancement in OAR 141-085-0694
(E) Construction of the CM
site will not adversely affect adjacent waters of this state;
(F) Construction of the CM site will not
significantly change pre-development hydrologic conditions, significantly
increase peak flows or significantly change the velocity to receiving streams;
(G) Stormwater discharges to
existing or CM wetlands will not result in hydrologic conditions that impair
vegetation or substrate characteristics necessary to support wetland
(i) CM for
Linear Projects. The Department will review and approve CM for linear projects
(e.g., roads or utility lines) that cross multiple waters of this state or that
may occur in multiple watersheds on a case-by-case basis and may establish
other CM requirements than those explicitly set forth in these rules.
Or. Admin. R. 141-085-0680
DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 8-2009, f. 12-15-09, cert. ef. 1-1-10; DSL 1-2011, f.
& cert. ef. 3-1-11; DSL 3-2012, f. 9-28-12, cert. ef. 9-29-12; DSL 3-2014,
f. 8-14-14, cert. ef. 9-1-14;
2-2019, amend filed 03/28/2019, effective
4-2019, minor correction filed 04/10/2019, effective
Statutory/Other Authority: ORS
Statutes/Other Implemented: ORS