Or. Admin. R. 141-085-0690 - Eligibility Requirements for CM

(1) CM at an off-site location will be located within the 4th field Hydrologic Unit Code (HUC) in which the removal-fill site is located, or within a service area of a bank or in-lieu fee covering the removal-fill site.

(2) Impacts to tidal waters must be replaced in the same estuary unless the Director determines that it is ecologically or environmentally preferable to exceed this limitation according to OAR 141-085-0690(4).

(3) Replacement by Type and Functions and Values. The CM project must have the capability to replace:

(a) Wetland or tidal water type(s) impacted by the project, as classified per Cowardin system and class (e.g., palustrine forested) and by HGM class/subclass(es) (e.g., riverine impounding);

(b) Stream type(s) impacted by the project, meaning having the same:

(A) Flow permanence (intermittent or perennial);

(B) Stream size class (small, medium, or large), as set forth by Oregon Department of Forestry in OAR 629-635-0200 Sections (13) and (14); and

(C) Essential Indigenous Anadromous Salmonid Habitat (ESH) designation, if the impact is to an ESH stream.

(c) The group-level functions and values of the impacted water of this state, as outlined in ORWAP or SFAM, as appropriate, unless CM is proposed to be fulfilled by purchase of legacy credits.

(4) Exceptions. The Department may approve exceptions to replacement by type and functions and values if the alternative CM is ecologically or environmentally preferable.

(a) CM for impacts to an Aquatic Resource of Special Concern (ARSC) must involve the ARSC type being impacted. Replacement by type and functions and values is not required.

(b) To meet an exception to replacement by type and function and values, the applicant must demonstrate, in writing, that the alternative CM:

(A) Addresses a watershed priority, as identified in a planning or assessment document, report, or other data that considers one or more of the following:

(i) How specific types and locations of projects will provide identified priority aquatic function for the watershed;

(ii) Habitat requirements of important aquatic-resource dependent species;

(iii) Loss or conversion trends of aquatic resource habitats;

(iv) Sources of watershed impairment;

(v) Current development trends that adversely affect aquatic resources or necessitate the presence of aquatic resource functions; or

(vi) Requirements of other regulatory and non-regulatory programs that affect the watershed.

(B) Provides, or will provide post-construction, a high level of the functions and values that are relevant to the targeted priority.

(c) Applications requesting an exception must include:

(A) A description of the planning or assessment documents, reports, or data upon which their CM is based. The description will include when, how, and by whom the analysis was completed, the geographic area covered by the analysis, and a summary of any public and private stakeholder involvement in the analysis including any coordination with federal, state, tribal, and local aquatic resource management and regulatory staff;

(B) A description of the specific ecologically or environmentally preferable priority listed above that is targeted in the mitigation plan and the reasoning behind it being considered a priority. The description will include a summary of the historic loss, causes for the loss, and ongoing threats; and

(C) A description of how the location, type, functions and values provided by the proposed compensatory mitigation site address the targeted priority. The description will include an appropriate level of field documentation, including a function and value assessment, data collected at the site, mitigation drawings and specifications, and any letters from consultation with local agency representatives (e.g., ODFW, DEQ)

Notes

Or. Admin. R. 141-085-0690

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 2-2019, amend filed 03/28/2019, effective 4/1/2019; DSL 6-2019, minor correction filed 04/10/2019, effective 4/10/2019

Statutory/Other Authority: ORS 196.600-196.692 & ORS 196.825

Statutes/Other Implemented: ORS 196.600-196.692 & ORS 196.795 - 196.990