Or. Admin. Code § 690-505-0610 - Mitigation Obligation and Mitigation Standards

(1) Except as provided in section (6), (7) and (8) of this rule, the Department may only approve a ground water permit application in the Deschutes Ground Water Study Area if mitigation is provided pursuant to these rules.

(2) A mitigation obligation may be satisfied by obtaining mitigation credits or by providing for implementation of a mitigation project.

(3) Mitigation projects may include:

(a) The allocation of conserved water provided under ORS 537.455 to 537.500 and OAR chapter 690, division 18, where the applicant's portion of the conserved water is allocated and legally protected for instream use;

(b) The transfer of an existing water right to an instream use if the water right to be transferred is also lawfully eligible for transfer to another out-of-stream use, and for mitigation banks, the time-limited transfer or lease of an existing water right to instream use under ORS 537.348 and OAR chapter 690, division 77;

(c) A permit to appropriate water for the purpose of artificial recharge of a ground water reservoir pursuant to ORS 537.135 and OAR chapter 690, division 350;

(d) A secondary permit to use stored water from an existing reservoir obtained pursuant to ORS 537.130 to 537.211 and OAR chapter 690, division 310, provided the secondary permit is for instream use; or

(e) Other projects approved by the Department that result in mitigation water.

(4) Mitigation water must be provided within the general zone of impact identified by the Department, legally protected for instream use prior to permit issuance, and committed for the life of the permit and subsequent certificate(s).

(5) The amount of mitigation needed to satisfy a mitigation obligation shall be:

(a) One mitigation credit per acre-foot of consumptive use based on the ground water permit application; or

(b) Mitigation water equal to the volume of consumptive use of the ground water permit application, calculated in acre-feet.

(6) These rules do not preclude any person from submitting evidence, which will be considered by the Department, that a proposed or existing ground water appropriation does not have the potential for substantial interference with surface water rights as described in OAR chapter 690, division 9, and will not measurably reduce scenic waterway flows under ORS 390.835.

(7) If the Department finds, based on a preponderance of evidence, that a specific ground water permit application does not have the potential for substantial interference with surface water under OAR chapter 690, division 9, and will not result in a measurable reduction of scenic waterway flows under ORS 390.835, the Department shall not require mitigation for that specific ground water use.

(8) Notwithstanding section (1) of this rule, if the impact of use under a ground water permit application is completely offset by a proposed voluntary cancellation of an existing ground water use subject to transfer, such that impact on surface waters from the new ground water use is the same as, or less than, impact on surface waters from the existing ground water use subject to transfer, the ground water permit application may be approved without additional mitigation once the proposed voluntary cancellation is complete.

Notes

Or. Admin. Code § 690-505-0610

WRD 3-2002, f. & cert. ef. 9-27-02

Stat. Auth.: ORS 536.027 & ORS 390.835

Stats. Implemented: ORS 390.835, Ch. 659 2001 OL HB 2184