WETLAND CONSERVATION PLAN WETLAND RESOURCE DESIGNATIONS AND ANALYSIS OF
(1) This rule applies to decisions concerning wetland resource designations and analysis of alternatives made after the local government sponsoring the Wetland Conservation Plan (WCP) has:
(a) Defined the WCP area;
(b) Completed the required Local Wetlands Inventory (LWI) according to the criteria of OAR 141-086-0180 to 141-086-0240;
(c) Completed the required wetland function and value assessments using an assessment methodology acceptable to the Division; and
(d) Developed WCP Goals for the planning area that consider the legislative findings in ORS 196.668.
(2) Consistent with ORS 527.722 of the Forest Practices Act, this rule does not apply to forest practices as defined in ORS 527.620 in areas regulated by the Forest Practices Act (ORS 527.610 to 527.770, 527.990(1) and 527.992).
Stat. Auth.: ORS 196.692
Stats. Implemented: ORS 196.678 – ORS 196.692, ORS 215 & ORS 227.350
Hist.: LB 6-1994, f. & cert. ef. 10-20-94; DSL 2-2001, f. & cert. ef. 2-26-01
(1) This rule:
(a) Identifies the procedures for local governments and the Director to use when analyzing alternatives to adversely impacting wetland systems;
(b) Provides criteria for local governments to use when designating wetlands or portions of wetlands within the WCP into Protection, Conservation or Development Categories; and
(c) Defines the minimum information required of local governments to allow the Director to develop findings of fact to determine whether practicable alternatives to adversely impacting wetlands or portions of wetlands designated into the Development Category are available. This information includes the determination of whether:
(A) A public need for the proposed use is, set forth in the acknowledged local comprehensive plan;
(B) Adverse impacts to wetland systems are avoided to the extent practicable; and
(C) The anticipated impacts of fill or removal on wetland systems are minimal.
(2) This rule is not meant to establish the definitive analysis for every aspect of wetland conservation planning. In addition to meeting the requirements of this rule, each jurisdiction must also comply with all parts of ORS 196.668 to 196.692 and with its own and other relevant ordinances and state and federal laws, including Section 404 of the Clean Water Act.
The Division shall adhere to the following policies when providing technical assistance to local governments developing a WCP and when reviewing a WCP proposed for the Director's approval:
(1) Wetland systems are important ecological components of the landscape and provide numerous functions and values;
(2) The Division shall ensure that full replacement of wetland functions and values, lost under the authority of OAR 141-120-0000 to 141-120-0230, occurs and that a stable resource base is maintained;
(3) Local governments have the authority to establish and, as necessary, adjust the Urban Growth Boundary (UGB) and the Division shall accept decisions, acknowledged by the Land Conservation and Development Commission or by operation of law, that relate to setting or adjusting the UGB or the boundaries of an Urban Service Area or Exception Area;
(4) The state shall promote the protection, conservation and best use of wetland resources and their functions and values through the integration and close coordination of state-wide planning goals, local comprehensive plans and state and federal regulatory programs (ORS 196.672(1));
(5) Because WCPs are meant to resolve conflicts between the protection and conservation of wetlands and the use of wetlands for development, the WCP area shall include undeveloped land with development conflicts involving wetlands;
(6) The Division shall not approve a WCP that merely attempts to obtain state authorization for individual development projects including those that cover large areas, are multi-phased or are controlled by a single ownership or management entity;
(7) Wetlands designated in the Protection Category and those used for compensatory mitigation under a WCP shall be protected in perpetuity. A protection designation may only change as a result of a plan amendment (ORS 196.684), if, after opportunity for public comment, the Director finds that a substantial change in circumstance has occurred; and
(8) For the purpose of this rule, the determination of whether a wetland provides a function or value, has potential to provide a function or value, does not provide a function or has enhancement potential will be made according to the Oregon Freshwater Wetland Assessment Methodology unless the local jurisdiction has obtained written approval from the Division to use a different assessment methodology. If a different assessment methodology is approved then equivalent terminology will be set out in the Division's letter of approval.
For purpose of this rule, all definitions in OAR 141-120-0005 are also applicable.
(1) "Buildable Lands Inventory" means the inventory of housing needs as defined in OAR 660-007-0005(3) and OAR 660-008-0005(2) and inventory of industrial and commercial lands as defined in OAR 660-009-0015(3).
(2) "Committed Infrastructure" means utilities and transportation facilities that have been approved, within three years prior to submittal of the WCP, under the Oregon Removal-Fill Law and have funding available for construction.
(3) "Conservation Category" means a wetland resource designation that allows for actions that conserve, restore or enhance the functions and values of the wetland resource.
(4) "Development Category" means a wetland resource designation that allows for actions that will convert the wetland resource to other uses.
(5) "Director" means the Director of the Oregon Division of State Lands or the Director's designate.
(6) "Division" means the Oregon Division of State Lands.
(7) "Exception Area" means rural lands for which an exception to the Statewide Planning Goals has been acknowledged.
(8) "Full Replacement of Wetland Functions and Values" means no net loss of wetland functions or values in the WCP area.
(9) "Functions and Values" means the ecological and biological processes and social benefits that the wetland or wetland system provides.
(10) "Inhabited by" means that a species uses the area for rearing, feeding, or breeding or as a migration or dispersal corridor.
(11) "Isolated wetland" means a wetland without a permanent or seasonal surface connection to another wetland or water of the state.
(12) "Legally Protected" means development is prevented by operation of state, federal or local law. Examples of legally protected wetlands include those protected under the federal Endangered Species Act, Statewide Planning Goal 17, or by plat restrictions. Protection under the WCP is in addition to, not in place of, the original legal protection applicable to these wetlands.
(13) "Local Government" means any city, county or metropolitan service district formed under ORS Chapter 268 or an association of local governments performing land use planning functions under ORS 197.190.
(14) "Ongoing Use" means an allowed use occurring when the WCP is approved. A use is not ongoing if it has not occurred within the last five years.
(15) "Planned Infrastructure" means utilities and transportation facilities not built but specifically identified in the acknowledged local comprehensive plan.
(16) "Protection Category" means a wetland resource designation that ensures long-term maintenance of the existing functions of the wetland resource.
(17) "Public Need" for the purpose of this rule, means the need for the land uses designated in the local comprehensive plan for those areas placed into the development category in the WCP.
(18) "Stable Resource Base" means no net loss of wetland area within the WCP area.
(19) "Urban Growth Boundary" means an Urban Growth Boundary included or referenced in an acknowledged local comprehensive plan.
(20) "Urban Service Area" means an area identified within the acknowledged local comprehensive plan that is developed, or capable of being developed, at urban densities.
(21) "Wetland Conservation Plan Goals" (WCP Goals), for the purpose of this rule, means the objectives that the WCP is intended to achieve. WCP Goals may be divided into natural resource, economic and other applicable goals.
(22) "Wetland Resource Designation" means placing wetlands or portions of wetlands into "protection", "conservation", or "development" management category under ORS 196.678(2)(d).
(23) "Wetland System" means a wetland complex that is hydrologically or biologically connected in the landscape.
Wetland Resource Designations
(1) ORS 196.678(2)(d) and 196.681(3)(c) require that wetlands or portions of wetlands within a WCP area be placed into a protection, conservation or development category.
(2) The wetland resource designation(s) must take into consideration the capability of the wetland system to withstand alterations while maintaining important wetland functions.
(3) Local governments shall identify wetlands that meet the criteria for the Protection Category (OAR 141-120-0070) and designate these wetland resources into the Protection Category prior to designating wetland resources into the Conservation or Development Categories.
(4) Wetlands designated into the Protection Category shall not be redesignated into the Development or Conservation Categories except as allowed under OAR 141-120-0020(7).
The Purpose of the Protection Category
The purpose of placing wetlands or portions of wetlands into the Protection Category is to protect important wetland resources in perpetuity except as specified in OAR 141-120-0020(7), and preserve them for the functions and values they provide for the people of Oregon.
Management Directive for the Protection Category
Local governments shall ensure that areas in the Protection Category are managed to:
(1) Allow each site's natural ecological processes to occur; or
(2) Maintain or enhance the existing wetland type, functions or values.
Designation Criteria for the Protection Category
(1) Local governments at a minimum shall place into the Protection Category wetlands or portions of wetlands that:
(a) Contain uncommon wetland plant communities including those listed in the Oregon Natural Heritage Program's Classification and Catalog of Native Wetland Plant Communities in Oregon as G3 or S3 or lower;
(b) Are legally protected;
(c) Are inhabited by or support any species listed by the federal or state government as a sensitive, threatened or endangered species in Oregon unless consultation with the appropriate state or federal agency indicates that the wetland is not important for the species; or
(d) Are listed as "Wetlands of Special Interest for Protection" in the Oregon Freshwater Wetland Assessment Methodology; or
(e) Are located in designated floodways; or
(f) Are identified as habitat for spawning or rearing anadromous salmonid fish by the Oregon Department of Fish and Wildlife or the National Marine Fisheries Service.
(2) In addition to areas protected under OAR 141-120-0070(1), local governments should place into the protection category wetlands or portions of wetlands that meet protection criteria established as part of the WCP to achieve WCP Goals.
(3) For the purposes of this section, the term "floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the 100 year flood without cumulatively increasing the water surface elevation more than a designated height.
Uses Allowed in the Protection Category
(1) A local government may prohibit all human use in areas placed in the Protection Category.
(2) A local government may allow only the following uses in areas placed in the Protection Category without additional review:
(a) Passive recreation activities that require no structures, such as bird watching, canoeing or nature walks;
(b) Restoration of native plant species by manual means;
(c) Sensitive, threatened and endangered species recovery programs that do not involve physical or hydrological alteration of the area; and
(d) Educational uses or research that does not involve physical or hydrological alterations that will adversely affect wetland functions.
(3) A local government may allow the uses listed below if they meet the management directives of OAR 141-120-0060 after reviewing the use against and determining that the proposed use meets criteria and standards set out in the WCP implementing ordinances:
(a) Walkways, trails, viewing structures and signs;
(b) Maintenance of existing structures and trails;
(c) Physical or hydrological alterations for educational purposes or research;
(d) Management activities to protect, maintain or enhance existing wetland types or functions or values;
(e) Sensitive, threatened and endangered species recovery programs that require physical or hydrological alterations;
(f) Limited harvest of plants or non-game animals that is consistent with state, local and federal law;
(g) Restoration and other enforcement actions needed to repair damage caused by unauthorized activities;
(h) Fishing or hunting consistent with state, local and federal law; and
(i) Construction of committed infrastructure.
The Purpose of the Conservation Category
The purpose of placing wetlands or portions of wetlands into the Conservation Category is:
(1) To conserve, restore or enhance the functions and values of the wetland resources for the long-term benefits provided; and
(2) To authorize those uses allowed under OAR 141-120-0130.
Management Directive for the Conservation Category
Local governments shall ensure that areas in the Conservation Category are managed to conserve or enhance the functions and values of the wetland resource except as impacted by uses allowed under OAR 141-120-0130.
Compensatory Mitigation Requirement for the Conservation Category
Compensatory mitigation is required for all uses allowed in the Conservation Category that cause permanent loss of wetland functions, values or wetland area.
Designation Criteria for the Conservation Category
Local governments may place wetlands or portions of wetlands into the Conservation Category that do not meet the designation criteria for the Protection Category. The Conservation Category should include wetlands that:
(1) Are located within a designated 100 year flood plain;
(2) Provide a function or value listed as a WCP goal;
(3) Provide enhancement potential as defined in the Oregon Freshwater Assessment Methodology or an assessment methodology acceptable to the Division;
(4) Are suitable for the uses set out in OAR 141-120-0130; or
(5) Maintain continuity of a:
(a) Wildlife corridor;
(b) Stream corridor; or
(c) Greenway or recreational corridor.
(6) For the purposes of this section, the term "100 year flood plain" means the area susceptible to being inundated by water during a flood having a one percent chance of occurring in a given year.
Uses Allowed in the Conservation Category
(1) A local government may allow the following uses in areas placed in the Conservation Category without additional review:
(a) All uses allowed under OAR 141-120-0080(2);
(b) Actions to control vegetation required by the local Fire Marshall or ordinances to prevent fire hazards; and
(c) Ongoing normal farming and ranching activities conducted in accordance with federal, state and local laws.
(2) A local government may allow other uses that meet the management directives in OAR 141-120-0100 after reviewing the use against and determining that the proposed use meets criteria and standards set out in the WCP implementing ordinance, including
(a) Planned infrastructure as authorized in OAR 141-120-0180, and
(b) Construction of committed infrastructure.
The Purpose of the Development Category
The purpose of placing wetlands or portions of wetlands into the Development Category is to help balance the public's need for development with the need to protect and conserve important wetland resources.
Management Directive for the Development Category
(1) To offset the adverse impacts of allowing wetlands to be used for development, the associated mitigation plan for the WCP shall ensure full replacement of wetland functions and values and shall maintain a stable resource base.
(2) Until development projects are reviewed and authorized in accordance with the WCP or the Director's order approving the WCP, local governments shall ensure that areas in the Development Category are managed according to OAR 141-120-0100.
Designation Criteria for the Development Category
(1) A local government may designate isolated wetlands one acre or less in area into the Development Category if:
(a) The local government determines that there is no less damaging practicable alternative within the WCP area with the same zoning; and
(b) The function and value assessment indicates that the wetland:
(A) Provides no functions or values and has little enhancement potential; or
(B) Provides or has potential to provide only functions or values that are not listed as WCP Goals; or
(C) The local government demonstrates with findings of fact and supporting reasons that the wetland can reasonably be expected to be adversely impacted by committed infrastructure; and
(2) A local government may designate wetlands or portions of wetlands notwithstanding the wetland's size or connectivity into the Development Category if:
(a) The local government determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the WCP area; and
(b) The functions and values assessment for the wetland indicates that the wetland:
(A) Provides no function and has little enhancement potential; or
(B) Provides or has potential to provide only functions or values that are not listed as WCP Goals and has little enhancement potential.
(3) A local government may designate wetlands or portions of wetlands notwithstanding the wetland's size or connectivity into the Development Category if:
(a) The functions and values assessment for the wetland indicates that the wetland provides or has potential to provide a function or value that is listed as a WCP Goal or has enhancement potential; and
(b) The local government:
(A) Determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the UGB, the Urban Service area or the Rural Service area; and
(B) Provides an explanation, in the form of a finding of fact with supporting reasons, as to why the comprehensive plan's land use designation cannot be changed to avoid impacting the wetland.
(4) For the purposes of OAR 141-120-0160, the term "less damaging practicable alternative" means "less environmentally damaging practicable alternative".
Uses Allowed in Development Category Wetlands
A local government may allow the following uses after reviewing the proposed use against criteria and standards set out in the WCP implementing ordinances, that ensure that the uses meet the management directives in OAR 141-120-0150 and are intended to achieve WCP Goals:
(1) All uses allowed in the WCP and implementing zoning ordinances;
(2) Construction of committed infrastructure; and
(3) Biofiltration or other wetland water treatment systems provided the proposed project meets all applicable water quality standards.
Planned infrastructure may be authorized in a wetland designated in the Conservation Category in the following manner:
(1) The party sponsoring the planned infrastructure may receive authorization directly from the Division under ORS 196.682; or
(2) The Director may find that the project avoids wetlands in the WCP area to the degree practicable. If so, the Director's order approving the WCP may identify the approximate location of the planned infrastructure if the local government:
(a) Determines that the need for the planned infrastructure exists by showing that:
(A) Existing development is dependent on the planned infrastructure; or
(B) The planned infrastructure is required to allow access to buildable uplands;
(b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area; and
(c) Provides the general area for the location of the planned infrastructure.
(d) To obtain authorization from the Division to construct planned infrastructure with its approximate location identified in the Director's order:
(A) The local government shall provide:
(i) The final alignment and right of way for the planned infrastructure; and
(ii) The steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland.
(B) The Director shall evaluate the information provided under paragraph (2)(d)(A) of this rule in the expedited fashion authorized under ORS 196.682.
(3) The Director's order approving the WCP may authorize construction of planned infrastructure if the local government
(a) Determines that the need for the planned infrastructure exists by showing that:
(A) Existing development is dependent on the planned infrastructure; or
(B) The planned infrastructure is required to allow access to buildable uplands;
(b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area;
(c) Provides the final alignment and right of way for the planned infrastructure; and
(d) Provides the steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland.
(4) "Showing" in this rule means findings of fact with supporting reasons.
To meet the requirements of this rule, the local government's implementing ordinances shall include standards and criteria that regulate:
(1) Alteration or removal of vegetation including trees;
(2) Uses allowed in wetlands placed into the Protection and Conservation Categories after review by the local government; and
(3) How protection in perpetuity for wetlands designated protection is provided.
(1) Local governments shall provide:
(a) The implementing ordinances that set out the standards and criteria necessary to ensure that allowed uses comply with the management directives for protection, conservation and development and an explanation of how the ordinance ensures compliance with the management directives;
(b) All determinations, showings and findings with supporting documents and maps developed or used to fulfill requirements of OAR 141-120-0000 to 141-120-0230;
(c) Maps of the land use designations used in the local comprehensive plan;
(d) Maps if available, and explanatory narrative of the local buildable lands inventory;
(e) Where applicable, consideration of plans and projects of adjacent jurisdictions;
(f) The list of sites placed into each Wetland Resource Designation and supporting information; and
(g) Information required by OAR 141-120-0180 to determine the method to be used for planned infrastructure in the Director's order.
When reviewing the local govern-ment's wetland resource designations and analysis of alternatives, the Director shall:
(1) Consult with the local government and, as necessary, the Department of Land Conservation and Development on the information provided under OAR 141-120-0200.
(2) Determine whether the local government has:
(a) Applied the wetland resource designation criteria as intended;
(b) Developed standards and criteria for reviewing allowed uses that ensure the uses meet the management directives for the appropriate wetland resource designation;
(c) Avoided adverse impacts to wetland systems to the extent practicable;
(d) Minimized the impacts of fill or removal to the wetland system in the WCP area; and
(e) Demonstrated that the WCP provides protection in perpetuity for areas placed into the Protection Category.
(3) Determine whether planned infrastructure will be authorized in the Director's order approving the WCP or identified for locating in any approximate area of the WCP area.
Jurisdictions Not Governed by this Rule
A jurisdiction that submits a WCP to the Division within six months from the date this rule is adopted may be exempt from the requirements of OAR 141-120-0000 to 141-120-0230 if, within 90 days from adoption of this rule, the jurisdiction demonstrates to the Director's satisfaction that the jurisdiction has made substantial progress toward designating wetland resources for protection, conservation or development and analysing alternatives to adversely impacting wetlands by other means.
Citation of Statutory Authority