Or. Admin. Code § 350-082-0230 - Emergency/Disaster Response Actions
(1) General Guidelines
(a) Actions taken in response to an
emergency/disaster, as defined in
350-082-0070(65),
are allowed in all GMA and SMA land use designations, subject to the
notification requirements in section (2) below.
(b) Following emergency/disaster response
actions, best management practices (BMPs) to prevent sedimentation and provide
erosion control shall be utilized whenever disaster response actions
necessitate vegetation removal, excavation, or grading. BMPs may include but
are not limited to: use of straw bales, slash windrows, filter fabric fences,
sandbags, straw cover, jute netting, etc.
(c) Structures or development installed or
erected for a temporary use (e.g., sandbags, check dams, plastic sheeting,
chain link fences, debris walls, etc.) shall be removed within one year
following an emergency event. If it can be demonstrated that the continued use
of these devices is necessary to protect life property, public services or the
environment, an extension of no more than two years may be granted by the
Executive Director, or the Forest Service for federal agency actions.
(d) The new exploration, development
(extraction or excavation), and production of mineral resources used for
commercial or private or public works projects, shall not be conducted as an
emergency/disaster response activity.
(e) No spoils resulting from grading or
excavation activities shall be deliberately deposited into water resources or
their buffer zones within the National Scenic Area as a part of an
emergency/disaster response action. The only exception to this is for
construction of a fire line during a wildfire, where avoiding the aquatic area
or its buffer zone has been considered and determined to not be possible
without further jeopardizing life or property.
(2) Notification Requirements
(a) Actions taken in response to an
emergency/disaster, as defined in
350-082-0070(65),
are allowed in all GMA and SMA land use designations, subject to the following
notification requirements.
(A) Notification
of an emergency/disaster response activity shall be submitted either within 48
hours of the commencement of a response action, or by the next business day
following the start of such an action, whichever is sooner. Notification shall
be submitted by the party conducting an emergency/disaster response activity or
their representatives. In the case of multiple responding parties, the first
party to respond shall provide the required notification, unless, upon mutual
agreement of responding parties, another responder elects to assume this
responsibility.
(B) Notification
shall be submitted by mail, fax, telephone, e-mail or in person. If
notification occurs by telephone, a hard copy of the notification shall be
submitted by mail or in person within seven days.
(C) Notification shall be furnished to the
Executive Director, or the Forest Service for federal agency actions. If the
Forest Service is the action agency, it shall provide notice to the Gorge
Commission.
(D) At a minimum, the
following information shall be required at the time of notification:
(i) Nature of emergency/disaster
event;
(ii) Description of
emergency/disaster response activities and magnitude of response actions to be
taken, if applicable (such as extent of earth movement, erection of structures,
etc.);
(iii) Location of
emergency/disaster response activities;
(iv) Estimated start and duration of
emergency/disaster response activities; and
(v) Contact person and phone number for the
parties conducting emergency/disaster response actions.
(E) Repair and maintenance of an existing
serviceable structure to its previously authorized and undamaged condition are
not subject to the above referenced notification requirements.
(b) Upon notification of an
emergency/disaster response action, the Executive Director, or Forest Service
shall, as soon as possible:
(A) Review its
natural resource data and notify the contact person for the emergency/disaster
response actions of all inventoried natural resource sites and their buffers,
that are within or adjacent to the response area or that may be adversely
affected by response activities;
(B) Notify the Oregon or Washington
Department of Fish and Wildlife of all noticed emergency/disaster response
actions, to provide that agency an opportunity to consult with responding
agencies during the event, and;
(C)
Notify the Forest Service, the Oregon State Historic Preservation Office or the
Washington Department of Archeology and Historic Preservation, and the tribal
governments of all emergency/disaster response activities. The Forest Service
will review their cultural resource data and notify the contact person for the
emergency/disaster response action as soon as possible of all inventoried
cultural resource sites, or their buffers, that are within, or adjacent to,
emergency/disaster response areas.
(c) Upon notification of a response action,
the Forest Service shall, as soon as possible, offer the services of a resource
advisor to the agency or agencies conducting the response action. The resource
advisor will provide on-site advice to minimize impacts to resources from
emergency/disaster response actions.
(3) Post-Emergency/Disaster Response
Development Review Application Requirements
(a) Within 30 days following notification, a
post-emergency/disaster response application shall be submitted by the party
conducting the response action to the Executive Director, or Forest Service for
federal agency actions. In the case of an event with multiple responding
parties, the party providing initial notification as required herein shall
submit the application. An exception to this may occur if another responding
party, by mutual agreement with the other respondents, elects to submit the
application. Requests to extend this submittal deadline may be made in writing
and shall include the reason why an extension is necessary. Extensions shall
not exceed 30 days in duration.
(b)
Post-emergency/disaster response applications shall only address development
activities conducted during an emergency/disaster response. Applications shall
specify if development placed during an emergency/disaster event is permanent
or temporary. The terms "development activities" and "development" include the
disposal of any spoil materials associated with an emergency/disaster response
action. Applicants shall be responsible for operations under their control and
that of other responders, upon mutual agreement. Responders not agreeing to
have another responder address their actions shall be responsible to submit an
application for those actions.
(c)
Emergency/disaster response actions not involving structural development or
ground disturbance with mechanized equipment are exempt from these
requirements, except for those actions within 500 feet of a known cultural
resource (as determined in the notification process).
(d) Applications shall include the following
information:
(A) Applicant's name and
address;
(B) Location of
emergency/disaster response;
(C) A
written description of the emergency/disaster response, including any
structures erected, excavation or other grading activities, or vegetation
removal; and
(D) A map of the
project area drawn to scale, at a scale of one inch = 200 feet or a scale
providing greater detail. The map shall include:
(i) North arrow and scale.
(ii) Boundaries, dimensions and size of
subject parcel(s).
(iii) Bodies of
water, watercourses, and significant landforms.
(iv) Existing roads and structures.
(v) New structures placed and any vegetation
removal, excavation or grading resulting from the response actions.
(E) An exception to the scale
requirements in subsection (3)(d)(D) above may be granted for an event
encompassing an area greater than one square mile. In such cases, a clear
sketch map of the entire response action area shall be provided. In addition, a
map of one inch = 200 feet or a scale providing greater detail shall be
provided that shows a section of the response area exemplifying the specific
actions taken.
(e)
Emergency/disaster response review uses may be allowed pursuant to a process
that provides at minimum the following:
(A)
Notice of the application to landowners within 200 feet of the perimeter of the
subject parcel, the Forest Service, Gorge Commission, the four Columbia River
treaty tribes, and interested parties;
(B) A written decision with findings of fact
and conclusions of law; and
(C) An
opportunity to request a hearing.
(4) Post-Emergency/Disaster Response
Development Review. Actions taken in all land use designations within the GMA
or SMAs that are in response to an emergency/disaster event, as defined, shall
be reviewed for compliance with the following guidelines.
(a) Scenic Resources
(A) Impacts of emergency/disaster response
actions shall be evaluated to ensure that scenic resources are not adversely
affected. In the GMA, such actions shall be rendered visually subordinate in
their landscape setting as visible from key viewing areas to the greatest
extent practicable, except for actions located in areas exempted from visual
subordinance requirements in
350-082-0600(3)(k).
In the SMAs, such actions shall meet the scenic standard to the greatest extent
practicable.
(B) Vegetation shall
be used to screen or cover road cuts, structural development, landform
alteration, and areas denuded of vegetation, as a result of emergency/disaster
response actions.
(C) Areas denuded
of vegetation as a result of emergency/disaster response actions shall be
revegetated with native plant species, or species commonly found within the
applicable landscape setting, to restore the affected areas to its pre-response
condition to the greatest extent practicable. Revegetation shall occur as soon
as practicable, but no later than one year after the emergency/disaster event.
An exception to the one-year requirement may be granted upon demonstration of
just cause, with an extension up to one year.
(D) The painting, staining or use of other
materials on new structural development shall be used to ensure that the
structures are non-reflective, or of low reflectivity, and visually subordinate
in their landscape setting as visible from key viewing areas, unless the
structure is fully screened from key viewing areas by existing topographic
features.
(E) Additions to existing
structures, resulting from an emergency/disaster response action, which are
smaller in total height, bulk or area than the existing structures may be the
same color as the existing development. Additions larger than the existing
development shall be visually subordinate in their landscape setting as visible
from key viewing areas to the greatest extent practicable.
(F) In the GMA, spoil materials associated
with grading, excavation and slide debris removal activities in relation to an
emergency/disaster response action shall comply with the following standards:
(i) The spoil materials shall either be:
(I) Removed from the National Scenic
Area,
(II) Deposited at a site
within the National Scenic Area permitted by an agency administering a National
Scenic Area land use ordinance, or
(III) (Re) contoured, to the greatest extent
practicable, to retain the natural topography, or a topography which emulates
that of the surrounding landscape.
(ii) The Executive Director shall decide
whether an applicant removes the spoil materials, deposits the spoil materials,
or (re)contours the spoils materials. The applicant does not make this
decision.
(iii) The Executive
Director shall select the action in subsection (i) above that, to the greatest
extent practicable, best complies with the policies and guidelines in the
Management Plan that protect scenic, cultural, recreation, and natural
resources.
(iv) Disposal sites
created according to subsection (i)(2) above shall only be used for spoil
materials associated with an emergency/disaster response action. Spoil
materials from routine road maintenance activities shall not be deposited at
these sites.
(G) In the
SMAs, spoil materials associated with grading, excavation and slide debris
removal activities in relation to an emergency/disaster response action shall
comply with the following standards:
(i) The
spoil materials shall either be:
(I) Removed
from the National Scenic Area, or
(II) Deposited at a site within the National
Scenic Area permitted by an agency administering a National Scenic Area land
use ordinance within two years of the emergency.
(ii) After the spoils materials are removed,
the emergency disposal site shall be rehabilitated to meet the scenic
standard.
(iii) All grading (i.e.,
recontouring) shall be completed within 30 days after the spoils materials are
removed.
(iv) Sites shall be
replanted using native plants found in the landscape setting or ecoregion to
the maximum extent practicable.
(v)
All revegetation shall take place within one year of the date an applicant
completes the grading.
(b) Cultural Resources and Treaty Rights
(A) To the greatest extent practicable,
emergency/disaster response actions shall not adversely affect cultural
resources.
(B) Emergency/disaster
response actions shall not affect or modify tribal treaty rights.
(C) The Forest Service shall determine if a
reconnaissance survey or historic survey is necessary within three days after
receiving notice that a post-emergency land use application has been received
by the Executive Director.
(i) Reconnaissance
surveys and report shall be conducted by the Forest Service and comply with the
standards in 350-082-0620(2)(b).
(ii) Historic surveys shall be conducted by
the Forest Service and shall describe any adverse effects to historic resources
resulting from an emergency/disaster response action. Historic surveys shall
document the location, form, style, integrity, and physical condition of
historic buildings and structures. Such surveys shall also include original
photographs, if available, and maps, and should use archival research,
blueprints, and drawings as necessary.
(D) Following the submittal of a
post-emergency land use application, in addition to other public notice
requirements that may exist, the tribal governments shall be notified by the
Executive Director when a reconnaissance survey is required or cultural
resources exist in the project area. Notices shall include a site plan. Tribal
governments shall have 15 calendar days from the date a notice is sent to
submit written comments. Written comments should describe the nature and extent
of any cultural resources that exist in the project area or treaty rights that
exist in the project area and how they have been affected, and identify
individuals with specific knowledge about them.
(E) When written comments are submitted in
compliance with subsection (D) above, the project applicant shall offer to meet
within five calendar days with the interested persons. The five-day
consultation period may be extended upon agreement between the project
applicant and the interested persons. A report shall be prepared by the
Executive Director following the consultation meeting. Consultation meetings
and reports shall comply with the standards in
350-082-0620(2)(e),
and 350-082-0130.
(F) If cultural resources are discovered
within the area disturbed by emergency response actions, the project applicant
shall have a qualified professional conduct a survey to gather enough
information to evaluate the significance of the cultural resources and what
effects the action had on such resources. The survey and evaluation shall be
documented in a report that generally follows the standards in
350-082-0620(2)(c)
and 350-082-0620(3)(b).
(G) A mitigation plan shall be prepared by
the project applicant if the affected cultural resources are significant. The
mitigation plan shall be prepared according to the information, consultation,
and report guidelines in
350-082-0620(5)(a).
(H) The Executive Director shall submit a
copy of all reconnaissance and historic survey reports and treaty rights
protection plans to the State Historic Preservation Office (SHPO) and the
tribal governments. Survey reports shall include measures to mitigate adverse
effects to cultural resources resulting from emergency/disaster response
actions. The SHPO and tribal governments shall have 15 calendar days from the
date a survey report is mailed to submit written comments to the Executive
Director. The Executive Director shall record and address all written comments
in the final decision.
(I) The
Executive Director shall make a final decision on whether the
emergency/disaster response actions are consistent with the applicable cultural
resource goals, policies, and guidelines. If the final decision contradicts the
comments submitted by the SHPO, or those submitted by a tribal government
regarding treaty rights, the Executive Director shall justify how the opposing
conclusion was reached.
(J) The
cultural resource protection process may conclude when it has been determined
that tribal treaty rights have not been affected and one of the following
conditions exists:
(i) The emergency/disaster
response action does not require a reconnaissance or historic survey, or a
reconnaissance survey demonstrates that no cultural resources are known to
exist in the project area, and no substantiated concerns were voiced by
interested persons within 15 calendar days of the date that a notice was
mailed;
(ii) The emergency/disaster
response action avoided cultural resources that exist in the project
area;
(iii) Adequate mitigation
measures to affected cultural resources have been developed and will be
implemented or (iv) A historic survey demonstrates that emergency/disaster
response actions, and associated development, had no effect on historic
buildings or structures because:
(I) The SHPO
concluded that the historic buildings or structures are clearly not eligible,
as determined by using the criteria in the "National Register Criteria for
Evaluation" (36 CFR
60.4), or
(II) The emergency/disaster response actions
did not compromise the historic or architectural character of the affected
buildings or structures, or compromise features of the site that are important
in defining the overall historic character of the affected buildings or
structures, as determined by the guidelines and standards in The Secretary of
the Interior's Standards for Rehabilitation (U.S. Dep't of the Interior 1990)
and The Secretary of the Interior's Standards for Historic Preservation
Projects (U.S. Dep't of the Interior
1983).
(c) Natural Resources
(A) To the greatest extent practicable,
emergency/disaster response actions shall not adversely affect natural
resources.
(B) Buffer zones for
water resources, Priority Habitats, or sensitive wildlife sites, and sites
containing rare plants, shall be the same as those established in
350-082-0640 through
350-082-0690.
(C) Water Resources
(i) Emergency/disaster response actions
occurring within a water resource buffer zone shall be reviewed by the Oregon
or Washington Department of Fish and Wildlife. State biologists will help
determine if emergency/disaster response actions have affected or have a
potential to affect these water resources or their buffer zones.
(ii) When emergency/disaster response
activities occur within water resources or their buffer zones, the applicant
shall demonstrate the following:
(I) All
reasonable measures have been applied to ensure that the response actions have
resulted in the minimum feasible alteration or destruction of the functions,
existing contours, vegetation, fish and wildlife resources, and hydrology of
wetlands, streams, ponds, lakes or riparian areas; and
(II) Areas disturbed by response activities
and associated development will be rehabilitated to the maximum extent
practicable.
(iii)
Impacts to water resources and their buffers will be offset through mitigation
and restoration to the greatest extent practicable. Mitigation and restoration
efforts shall use native vegetation, and restore natural functions, contours,
vegetation patterns, hydrology and fish and wildlife resources to the maximum
extent practicable.
(iv) If the
Executive Director, in consultation with the state wildlife agency, determines
that the emergency/disaster response actions had minor effects on the water
resource or its buffer zone that could be eliminated with simple modifications,
a letter shall be sent to the project applicant that describes the effects and
measures that need to be taken to eliminate them. The state biologist, or a
Forest Service natural resource advisor (as available) in consultation with the
state biologist, shall visit the site in order to make this determination. If
the project applicant accepts these recommendations, the Executive Director
shall incorporate them into the final order and the aquatic area protection
process may conclude.
(v) Unless
addressed through subsection (4)(c)(C)(iv) above, mitigation and restoration
efforts shall be delineated in a Water Resources Mitigation Plan. Water
Resources Mitigation Plans shall satisfy the standards in
350-082-0640(8)(a) and
(b) and the following:
(I) Plans shall include a plan view and
cross-sectional drawing at a scale that adequately depicts site rehabilitation
efforts. Plans will illustrate final site topographic contours that emulate the
surrounding natural landscape.
(II)
Planting plans shall be included that specify native plant species to be used,
specimen quantities and plant locations.
(III) The project applicant shall be
responsible for the successful rehabilitation of all areas disturbed by
emergency/disaster response activities.
(D) Wildlife Habitat
(i) Emergency/disaster response actions
occurring within 1,000 feet of a Priority Habitat or sensitive wildlife site,
shall be reviewed by the Oregon or Washington Department of Fish and Wildlife.
State wildlife biologists will help determine if emergency/disaster response
actions have affected or have a potential to affect a Priority Habitat or
sensitive wildlife site.
(ii) Site
plans for emergency/disaster response sites shall be submitted by the Executive
Director to the Oregon or Washington Department of Fish and Wildlife for review
as prescribed in 350-082-0650(3)(a).
(iii) The wildlife protection process may
terminate if the Executive Director, in consultation with the state wildlife
agency, determines the Priority Habitat or sensitive wildlife site was not
active, the emergency/disaster response did not compromise the integrity of the
Priority Habitat or sensitive wildlife site, or the emergency/disaster response
occurred at a time when wildlife species are not sensitive to
disturbance.
(iv) If the Executive
Director, in consultation with the state wildlife agency, determines that the
emergency/disaster response activities had minor effects on the Priority
Habitat or sensitive wildlife site that could be eliminated with simple
modifications, a letter shall be sent to the project applicant that describes
the effects and measures that need to be taken to eliminate them. The state
wildlife biologist, or a Forest Service natural resource advisor (as available)
in consultation with the state wildlife biologist, shall visit the site in
order to make this determination. If the project applicant accepts these
recommendations, the Executive Director shall incorporate them into the final
decision and the wildlife protection process may conclude.
(v) If the Executive Director, in
consultation with the state wildlife agency, determines that the
emergency/disaster response activities had adverse effect on a Priority Habitat
or sensitive wildlife site, the project applicant shall prepare a wildlife
mitigation plan. Wildlife mitigation plans shall comply with standards in
350-082-0650(4).
Upon completion of the wildlife mitigation plan, the Executive Director shall:
(I) Submit a copy of the wildlife mitigation
plan to the state wildlife agency for review. The state wildlife agency will
have 15 days from the date that a plan is mailed to submit written comments to
the Executive Director;
(II) Record
any written comments submitted by the state wildlife agency in its development
review order. Based on these comments, the Executive Director shall make a
final decision on whether the proposed use would be consistent with the
wildlife policies and guidelines. If the final decision contradicts the
comments submitted by the state wildlife agency, the Executive Director shall
justify how the opposing conclusion was reached.
(III) Require the project applicant to revise
the wildlife mitigation plan as necessary to ensure that the proposed use would
not adversely affect a Priority Habitat or sensitive wildlife
site.
(E) Deer
and Elk Winter Range. Any fencing permanently erected within deer and elk
winter range, as a result of an emergency/disaster response, shall comply with
the standards in 350-082-0650(5).
(F) Rare Plants
(i) Emergency/disaster response actions
occurring within 1,000 feet of a rare plant, shall be reviewed by the Oregon
Biodiversity Information Center or Washington Natural Heritage Program. State
heritage staff will help determine if emergency/disaster response actions have
occurred within the buffer zone of a rare plant.
(ii) Site plans for emergency/disaster
response sites shall be submitted to the Oregon Biodiversity Information Center
or Washington Natural Heritage Program by the Executive Director. State natural
heritage staff will, within 15 days from the date the application is mailed,
identify the location of the affected plants and delineate a 200-foot buffer
zone on the applicant's site plan.
(iii) The rare plant protection process may
conclude if the Executive Director, in consultation with the state natural
heritage program, determines that emergency/disaster response activities
occurred outside of a rare plan buffer zone.
(iv) If the Executive Director, in
consultation with the state natural heritage program, determines that the
emergency/disaster response activities had minor effects on rare plants or the
rare plant buffer zone, a letter shall be sent to the project applicant that
describes the effects and measures that need to be taken to eliminate them. The
state natural heritage staff, or a Forest Service natural resources advisor (as
available) in consultation with the state natural heritage staff, shall visit
the site in order to make this determination. If the project applicant accepts
these recommendations, the Executive Director shall incorporate them into the
final decision order and the rare plant protection process may
conclude.
(v) If emergency/disaster
response activities occurred within a rare plant buffer zone that had adverse
effects on rare plants or their buffer zone, the project applicant shall
prepare a Rare Plant Mitigation Plan that meets the standards in
350-082-0660(4).
(vi) The Executive Director shall submit a
copy of all Rare Plant Mitigation Plans to the state natural heritage program
for review. The state natural heritage program will have 15 days from the date
the Rare Plant Mitigation Plan is mailed to submit written comments to the
Executive Director.
(vii) The
Executive Director shall record any written comments submitted by the state
natural heritage program in its development review order. Based on these
comments, the Executive Director shall make a final decision on whether the
proposed use would be consistent with the rare plant policies and guidelines.
If the final decision contradicts the comments submitted by the state natural
heritage program, the Executive Director shall justify how the opposing
conclusion was reached.
(viii) The
Executive Director shall require the project applicant to revise the Rare Plant
Mitigation Plan as necessary to ensure that the proposed use would not
adversely affect a rare plant site.
(d) Recreational Resources
(A) To the greatest extent practicable,
emergency/disaster response actions shall not adversely affect recreational
resources.
(B) Mitigation measures
shall be implemented to mitigate any adverse effects on existing recreation
resources caused by emergency/disaster response activities to the maximum
extent practicable.
(5) Post-Emergency Construction. Placement of
structures necessary for continued public safety and the protection of private
property and essential public services damaged during an emergency/disaster
event are allowed in all land use designations in accordance with
350-082-0080 through 0170,
350-082-0380 through 0590 (as
applicable), and 350082-0600 through 0720. This includes replacement of
temporary structures erected during such events with permanent structures
performing an identical or related function. Land use applications shall be
submitted within 12 months following an emergency/disaster event.
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