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(continued)
(A) If the human remains will be reinterred or preserved in their original position, a mitigation plan shall be prepared in accordance with the consultation and report requirements specified in "Mitigation Plans: Mitigation Plan Criteria and Information Needs" (Commission Rule 350-080-0540(5)(a)).
(B) The mitigation plan shall accommodate the cultural and religious concerns of Native Americans. The cultural resource protection process may conclude when the conditions set forth in "Mitigation Plans: Conclusion of the Cultural Resource Protection Process" (Commission Rule 350-080-0540(5)(c)) are met and the mitigation plan is executed.
Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 2-1993 (Temp), f. 5-6-93, cert. ef. 6-1-93; CRGC 4-1993, f. & cert. ef. 8-4-93; CRGC 5-1994, f. 12-27-94, cert. ef. 2-1-95; CRGC 1-1995(Temp), f. & cert. ef. 7-25-95
350-080-0550
Special Management Area Cultural Resource Review Criteria
(1) General Guidelines for Implementing the Cultural Resources Protection Process:
(a) All cultural resource information shall remain confidential, according to Section 6(a)(1)(A) of the Scenic Area Act. Federal agency cultural resource information is also exempt by statute from the Freedom of Information Act under 16 USC 470 hh and 36 CFR 296.18.
(b) All cultural resources surveys, evaluations, assessments, and mitigation plans shall be performed by professionals whose expertise reflects the type of cultural resources that are involved. Principal investigators shall meet the professional standards published in 36 CFR 61.
(c) The Forest Service will be responsible for performing the literature review and consultation, inventory, evaluations of significance, assessments of effect, and mitigation requirements in Commission Rule 350-080-0550(4) for forest practices and National Forest System lands.
(d) New developments or land uses shall not adversely affect significant cultural resources.
(2) The procedures and guidelines in Commission Rule 350-080-0540 shall be used to review all proposed developments and land uses other than those on all federal lands, federally assisted projects and forest practices.
(3) The procedures and guidelines in 36 CFR 800 and Commission Rule 350-080-0550(4) shall be used by the Development Review Officer and federal agencies to evaluate new developments or land uses on federal lands, federally assisted projects, and forest practices.
(4) The following procedures as well as the provisions in 36 CFR 800 shall be used to assess potential effects to cultural resources.
(a) Literature Review and Consultation:
(A) An assessment shall be made to determine if any cultural resources listed on the National Register of Historic Places at the national, state or county level exist on or within the area of potential direct and indirect impacts.
(B) A search shall be made of state and county government, National Scenic Area/Forest Service and any other pertinent inventories, such as archives and photographs, to identify cultural resources, including consultation with the State Historic Preservation Office and tribal governments. State and tribal government response to the consultation request shall be allowed for 30 days.
(C) Consultation with cultural resource professionals knowledgeable about the area.
(D) A field inventory by a cultural resource professional shall be required if the Forest Service or the Development Review Officer determines that a recorded or known cultural resource exists on or within the immediate vicinity of a new development or land use, including those reported in consultation with the Tribal governments.
(b) Field Inventory:
(A) Tribal representatives shall be invited to participate in the field inventory.
(B) The field inventory shall consist of one or the other of the following guidelines, as determined by the cultural resource professional:
(i) Complete survey: the systematic examination of the ground surface through a controlled procedure, such as walking an area in evenly-spaced transects. A complete survey may also require techniques such as clearing of vegetation, augering or shovel probing of subsurface soils for the presence of buried cultural resources.
(ii) Sample survey: the sampling of an area to assess the potential of cultural resources within the area of proposed development or use. This technique is generally used for large or difficult to survey parcels, and is generally accomplished by a stratified random or non-stratified random sampling strategy. A parcel is either stratified by variables such as vegetation, topography or elevation, or by non-environmental factors such as a survey grid. Under this method, statistically valid samples are selected and surveyed to indicate the probability of presence, numbers and types of cultural resources throughout the sampling strata. Depending on the results of the sample, a complete survey may or may not subsequently be recommended.
(C) A field inventory report shall be prepared, and shall include the following:
(i) A narrative integrating the literature review of section (4)(a) above with the field inventory of section (4)(b) above.
(ii) A description of the field inventory methodology used, including the type and extent of field inventory, supplemented by maps which graphically illustrate the areas surveyed, not surveyed, and the rationale for each.
(iii) A statement of the presence or absence of cultural resources within the area of the new development or land use.
(iv) When cultural resources are not located, a statement of the likelihood of buried or otherwise concealed cultural resources shall be included. Recommendations and standards for monitoring, if appropriate, shall be included.
(D) The report shall follow the format specified by the Washington Office of Archaeology and Historic Preservation for inventories conducted in the State of Washington. Reports for inventories conducted in the State of Oregon shall follow the format specified by the Oregon State Historic Preservation Office.
(E) The field inventory report shall be presented to the Forest Service or the Development Review Officer for review.
(c) Evaluations of Significance:
(A) When cultural resources are found within the area of the new development or land use, an evaluation of significance shall be completed for each cultural resource in accordance with to the criteria of the National Register of Historic Places (36 CFR 60.4).
(B) Evaluations of cultural resource significance shall be guided by previous and current research designs relevant to specific research questions for the area.
(C) Evaluations of the significance of traditional cultural properties shall follow National Register Bulletin 38, Guidelines for the Evaluation and Documentation of Traditional Cultural Properties, within local and regional contexts.
(D) Recommendations for eligibility to the National Register shall be completed for each identified resource, in accordance with National Register criteria A through D (36 CFR 60.4). The Forest Service or the Development Review Officer shall review evaluations for adequacy.
(E) Evidence of consultation with tribal governments and individuals with knowledge of the cultural resources in the project area, and documentation of their concerns, shall be included as part of the evaluation of significance.
(F) An assessment of effect shall be required if the Forest Service or the Development Review Officer determines that the inventoried cultural resources are significant.
(d) Assessment of Effect:
(A) For each significant (i.e., National Register eligible) cultural resource inventoried within the area of the proposed development or change in use, assessments of effect shall be completed, using the criteria outlined in 36 CFR 800.9 ("Assessing Effects"). Evidence of consultation with tribal governments and individuals with knowledge of the cultural resources of the project area shall be included for sections (4)(d)(B) through (4)(d)(D) below. The Forest Service or Development Review Officer shall review each determination for adequacy.
(B) If the proposed development or change in use will have "No Adverse Effect," as defined by 36 CFR 800.8, to a significant cultural resource, documentation for that finding shall be completed, following the "Documentation Requirements" of 36 CFR 800.8(a).
(C) If the proposed development or change in use will have an "Adverse Effect" as defined by 36 CFR 800.9(b) to a significant cultural resource, the type and extent of "adverse effect" upon the qualities of the property that make it eligible for the National Register shall be documented. This documentation shall follow the process outlined under 36 CFR 800.5(e).
(D) If the "effect" appears to be beneficial (i.e., an enhancement to cultural resources), documentation shall be completed for the recommendation of that effect upon the qualities of the cultural resource that make it eligible to the National Register. This documentation shall follow the process outlined under 36 CFR 800.8 ("Documentation Requirements").
(e) Mitigation:
(A) If there will be an effect on cultural resources, measures shall be provided for mitigation of effects. These measures shall address factors such as avoidance of the property through project design or modification and subsequent protection, burial under fill, data recovery excavations, or other measures which are proposed to mitigate effects.
(B) Evidence of consultation with tribal governments and individuals with knowledge of the resources to be affected, and documentation of their concerns, shall be included for all mitigation proposals.
(C) The Forest Service or the Development Review Officer shall review all mitigation proposals for adequacy.
(5) Discovery During Construction. All authorizations for new developments or land uses shall be conditioned to require the immediate notification of the Forest Service or the Development Review Officer if cultural resources are discovered during construction or development.
(a) If cultural resources are discovered, particularly human bone or burials, work in the immediate area of discovery shall be suspended until a cultural resource professional can evaluate the potential significance of the discovery and recommend measures to protect and/or recover the resources.
(b) If the discovered material is suspected to be human bone or a burial, the following procedure shall be used:
(A) The applicant shall stop all work in the vicinity of the discovery.
(B) The applicant shall immediately notify the Development Review Officer, the Forest Service, the applicant's cultural resource professional, the State Medical Examiner, and appropriate law enforcement agencies.
(C) The Forest Service or the Development Review Officer shall notify the tribal governments if the discovery is determined to be an Indian burial or a cultural resource.
(D) A cultural resource professional shall evaluate the potential significance of the resource pursuant to Commission Rule 350-080-0550(4)(c) and report the results to the Forest Service or the Development Review Officer.
(c) The cultural resource review process shall be complete and work may continue if the Forest Service or the Development Review Officer determines that the cultural resource is not significant.
(d) The cultural resource professional shall recommend measures to protect and/or recover the resource pursuant to Commission Rule 350-080-0550(4)(e) if the Forest Service or the Development Review Officer determines that the cultural resource is significant.
Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 2-1993 (Temp), f. 5-6-93, cert. ef. 6-1-93; CRGC 4-1993, f. & cert. ef. 8-4-93; CRGC 5-1994, f. 12-27-94, cert. ef. 2-1-95; CRGC 1-1995(Temp), f. & cert. ef. 7-25-95
350-080-0560
General Management Area Wetland Review Criteria
(1) Wetlands Boundaries and Site Plans for Review Uses in Wetlands
(a) If the proposed use is within a wetland or wetlands buffer zone, the applicant shall be responsible for determining the exact location of the wetland boundary.
(A) The approximate location and extent of wetlands in the Scenic Area is shown on the National Wetlands Inventory (U.S. Department of the Interior 1987). In addition, the list of hydric soils and the soil survey maps shall be used as an indicator of wetlands. Wetlands boundaries shall be delineated using the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (Federal Interagency Committee for Wetland Delineation, 1989), and any subsequent amendments.
(B) All wetlands delineations shall be conducted by a professional which has been trained to use the federal delineation process, such as a soil scientist, botanist, or wetlands ecologist.
(C) The Development Review Officer may verify the accuracy of, and may render adjustments to, a wetlands boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the Development Review Officer shall, at the applicant's expense, obtain professional services to render a final delineation.
(b) In addition to the information required in all site plans, site plans for proposed uses in wetlands or wetlands buffer zones shall include:
(A) A site plan map prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail;
(B) The exact boundary of the wetland and the wetlands buffer zone; and
(C) A description of actions that would alter or destroy the wetland.
(2) Uses allowed outright in wetlands and wetlands buffer zones.
(a) Commission Rule 350-080-0560 shall not apply to proposed uses that would occur in the main stem of the Columbia River. The main stem of the Columbia River is depicted on the map titled "Boundary Map, Columbia River Gorge National Scenic Area," numbered NSA-001 and dated September 1986. (This map is available at county planning departments and Commission and Forest Service offices.) The boundaries of the main stem appear as a heavy black line that generally follows the shoreline. For Commission Rule 350-080, backwaters and isolated water bodies created by roads and railroads are not part of the main stem of the Columbia River.
(b) The following uses are allowed in wetlands and wetlands buffer zones without review, if they:
(A) Are conducted using best management practices;
(B) Do not require structures, grading, draining, flooding, ditching, vegetation removal, or dredging beyond the extent specified below; and
(C) Comply with all applicable federal, state, and county laws:
(i) Fish and wildlife management uses conducted by federal, state, or Indian tribal resource agencies.
(ii) Soil, water, and vegetation conservation uses that protect and enhance wetlands acreage and functions.
(iii) Low-intensity recreation uses, including hunting, fishing, trapping, bird watching, hiking, boating, swimming, and canoeing.
(iv) Non-commercial harvesting of wild crops, such as ferns, moss, berries, tubers, tree fruits, and seeds in a manner that does not injure natural plant reproduction or impact sensitive plant species.
(v) Agriculture, except new cultivation. Any operation that would cultivate land that has not been cultivated, or has lain idle, for more than 5 years shall be considered new cultivation. For this guideline cultivation and vegetation removal may be allowed in conjunction with a home garden.
(vi) Ditching, tilling, dredging, or grading conducted solely for the purpose of repairing and maintaining existing irrigation and drainage systems necessary for agriculture, provided that such uses are not undertaken to cultivate lands that have not been cultivated, or have lain idle, for more than 5 years.
(vii) Commercial fishing and trapping.
(viii) Educational uses and scientific research.
(ix) Navigation aids, including structures covered by Section 17(a)(3) of the Scenic Area Act.
(x) Forest practices that do not violate conditions of approval for other approved uses.
(xi) Repair, maintenance, and operation of existing and serviceable structures, trails, roads, railroads and utility facilities.
(3) The following uses may be allowed in wetlands and wetlands buffer zones when approved pursuant to the provisions in Commission Rule 350-080-0560(5), and reviewed under the applicable provisions of Commission Rule 350-080-0520 through 350-080-0620:
(a) The modification, expansion, replacement, or reconstruction of serviceable structures, if such actions would not:
(A) Increase the size of an existing structure by more than 100 percent,
(B) Result in a loss of wetlands acreage or functions, or
(C) Intrude further into a wetland or wetlands buffer zone. New structures shall be considered intruding further into a wetland or wetlands buffer zone if any portion of the structure is located closer to the wetland or wetlands buffer zone than the existing structure.
(b) The construction of minor water-related recreation structures that are available for public use. Structures in this category shall be limited to boardwalks; trails and paths, provided their surface is not constructed of impervious materials; observation decks; and interpretative aids, such as kiosks and signs.
(c) The construction of minor water-dependent structures that are placed on pilings, if the pilings allow unobstructed flow of water and are not placed so close together that they effectively convert an aquatic area to dry land. Structures in this category shall be limited to public and private docks and boat houses, and fish and wildlife management structures that are constructed by federal, state, or tribal resource agencies.
(4) Uses not listed in Commission Rule 350-080-0560(2) and (3) may be allowed in wetlands and wetlands buffer zones, when approved pursuant to Commission Rule 350-080-0560(6) and reviewed under the applicable provisions of Commission Rule 350-080-0520 through 350-080-0620.
(5) Applications for modifications to serviceable structures and minor water-dependent and water-related structures in wetlands shall demonstrate that:
a) Practicable alternatives to locating the structure outside of the wetlands or wetland buffer zone and/or minimizing the impacts of the structure do not exist;
(b) All reasonable measures have been applied to ensure that the structure will result in the minimum feasible alteration or destruction of the wetlands, existing contour, functions, vegetation, fish and wildlife resources, and hydrology;
(c) The structure will be constructed using best management practices;
(d) Areas disturbed during construction of the structure will be rehabilitated to the maximum extent practicable; and
(e) The structure complies with all applicable federal, state, and county laws.
(6) Applications for all other Review Uses in wetlands shall demonstrate that:
(a) The proposed use is water-dependent, or is not water-dependent but has no practicable alternative considering all of the following:
(A) The basic purpose of the use cannot be reasonably accomplished using one or more other sites in the vicinity that would avoid or result in less adverse effects on wetlands;
(B) The basic purpose of the use cannot be reasonably accomplished by reducing its size, scope, configuration, or density as proposed, or by changing the design of the use in a way that would avoid or result in less adverse effects on wetlands; and
(C) Reasonable attempts have been made to remove or accommodate constraints that caused a project applicant to reject alternatives to the use as proposed. Such constraints include inadequate infrastructure, parcel size, and zone designations. If a land designation or recreation intensity class is a constraint, an applicant must request a Management Plan amendment to demonstrate that practicable alternatives do not exist. An alternative site for a proposed use shall be considered practicable if it is available and the proposed use can be undertaken on that site after taking into consideration cost, technology, logistics, and overall project purposes.
(b) The proposed use is in the public interest. The following factors shall be considered when determining if a proposed use is in the public interest:
(A) The extent of public need for the proposed use.
(B) The extent and permanence of beneficial or detrimental effects that the proposed use may have on the public and private uses for which the property is suited.
(C) The functions and size of the wetland that may be affected.
(D) The economic value of the proposed use to the general area.
(E) The ecological value of the wetland and probable effect on public health and safety, fish, plants, and wildlife.
(c) Measures will be applied to ensure that the proposed use results in the minimum feasible alteration or destruction of the wetland's functions, existing contour, vegetation, fish and wildlife resources, and hydrology.
(d) Groundwater and surface-water quality will not be degraded by the proposed use.
(e) Those portions of a proposed use that are not water-dependent or have a practicable alternative will not be located in wetlands or wetlands buffer zones.
(f) The proposed use complies with all applicable federal, state, and county laws.
(g) Areas that are disturbed during construction will be rehabilitated to the maximum extent practicable.
(h) Unavoidable impacts to wetlands will be offset through restoration, creation, or enhancement of wetlands. Wetlands restoration, creation, and enhancement are not alternatives to the guidelines listed above; they shall be used only as a last resort to offset unavoidable wetlands impacts. The following wetlands restoration, creation, and enhancement guidelines shall apply:
(A) Impacts to wetlands shall be offset by restoring or creating new wetlands or by enhancing degraded wetlands. Wetlands restoration shall be the preferred alternative.
(B) Wetlands restoration, creation, and enhancement projects shall be conducted in accordance with a wetlands compensation plan.
(C) Wetlands restoration, creation, and enhancement projects shall use native vegetation.
(D) The size of replacement wetlands shall equal or exceed the following ratios (the first number specifies the required acreage of replacement wetlands and the second number specifies the acreage of wetlands altered or destroyed):
(i) Restoration: 2:1;
(ii) Creation: 3:1;
(iii) Enhancement: 4:1.
(E) Replacement wetlands shall replicate the functions of the wetland that will be altered or destroyed such that no net loss of wetlands functions occurs.
(F) Replacement wetlands should replicate the type of wetland that will be altered or destroyed. If this guideline is not feasible or practical due to technical constraints, a wetland type of equal or greater benefit may be substituted, provided that no net loss of wetlands functions occurs.
(G) Wetlands restoration, creation, or enhancement should occur within 1,000 feet of the affected wetland. If this is not practicable due to physical or technical constraints, replacement shall occur within the same watershed and as close to the altered or destroyed wetland as practicable.
(H) Wetlands restoration, creation, and enhancement efforts should be completed before a wetland is altered or destroyed. If it is not practicable to complete all restoration, creation, and enhancement efforts before the wetland is altered or destroyed, these efforts shall be completed before the new use is occupied or used.
(I) Five years after a wetland is restored, created, or enhanced at least 75 percent of the replacement vegetation must survive. The owner shall monitor the hydrology and vegetation of the replacement wetland and shall take corrective measures to ensure that it conforms with the approved wetlands compensation plan and this guideline.
(7) Wetlands Buffer Zones:
(a) The width of wetlands buffer zones shall be based on the dominant vegetation community that exists in a buffer zone;
(b) The dominant vegetation community in a buffer zone is the vegetation community that covers the most surface area of that portion of the buffer zone that lies between the proposed activity and the affected wetland. Vegetation communities are classified as forest, shrub, or herbaceous.
(A) A forest vegetation community is characterized by trees with an average height equal to or greater than 20 feet, accompanied by a shrub layer; trees must form a canopy cover of at least 40 percent and shrubs must form a canopy cover of at least 40 percent. A forest community without a shrub component that forms a canopy cover of at least 40 percent shall be considered a shrub vegetation community.
(B) A shrub vegetation community is characterized by shrubs and trees that are greater than 3 feet tall and form a canopy cover of at least 40 percent.
(C) A herbaceous vegetation community is characterized by the presence of herbs, including grass and grasslike plants, forbs, ferns, and nonwoody vines.
(c) Buffer zones shall be measured outward from a wetlands boundary on a horizontal scale that is perpendicular to the wetlands boundary. The following buffer zone widths shall be required:
(A) Forest communities: 75 feet;
(B) Shrub communities: 100 feet;
(C) Herbaceous communities: 150 feet.
(d) Except as otherwise allowed, wetlands buffer zones shall be retained in their natural condition. When a buffer zone is disturbed by a new use, it shall be replanted with native plant species.
(8) Wetlands Compensation Plans. Wetlands compensation plans shall be prepared when a project applicant is required to restore, create or enhance wetlands. They shall satisfy the following guidelines:
(a) Wetlands compensation plans shall be prepared by a qualified professional hired by a project applicant. They shall provide for land acquisition, construction, maintenance, and monitoring of replacement wetlands.
(b) Wetlands compensation plans shall include an ecological assessment of the wetland that will be altered or destroyed and the wetland that will be restored, created, or enhanced. The assessment shall include information on flora, fauna, hydrology, and wetlands functions.
(c) Compensation plans shall also assess the suitability of the proposed site for establishing a replacement wetland, including a description of the water source and drainage patterns, topography, wildlife habitat opportunities, and value of the existing area to be converted.
(d) Plan view and cross-sectional, scaled drawings; topographic survey data, including elevations at contour intervals no greater than 1 foot, slope percentages, and final grade elevations; and other technical information shall be provided in sufficient detail to explain and illustrate:
(A) Soil and substrata conditions, grading, and erosion and sediment control needed for wetland construction and long-term survival.
(B) Planting plans that specify native plant species, quantities, size, spacing, or density; source of plant materials or seeds; timing, season, water, and nutrient requirements for planting; and where appropriate, measures to protect plants from predation.
(C) Water-quality parameters, water source, water depths, water-control structures, and water-level maintenance practices needed to achieve the necessary hydrologic conditions.
(e) A 5-year monitoring, maintenance, and replacement program shall be included in all plans. At a minimum, a project applicant shall provide an annual report that documents milestones, successes, problems, and contingency actions. Photographic monitoring stations shall be established and photographs shall be used to monitor the replacement wetland.
(f) A project applicant shall demonstrate sufficient fiscal, technical, and administrative competence to successfully execute a wetlands compensation plan.
Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 2-1993 (Temp), f. 5-6-93, cert. ef. 6-1-93; CRGC 4-1993, f. & cert. ef. 8-4-93; CRGC 5-1994, f. 12-27-94, cert. ef. 2-1-95; CRGC 1-1995(Temp), f. & cert. ef. 7-25-95
350-080-0570
General Management Area Stream, Pond, Lake and Riparian Area Review Criteria
(1) Stream, Pond, and Lake Boundaries and Site Plans for Review Uses in Aquatic and Riparian Areas:
(a) If a proposed use would be in a stream, pond, lake or their buffer zones, the project applicant shall be responsible for determining the exact location of the ordinary high watermark or normal pool elevation.
(b) In addition to the information required in all site plans, site plans for proposed uses in streams, ponds, lakes, and their buffer zones shall include:
(A) A site plan map prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail;
(B) The exact boundary of the ordinary high watermark or normal pool elevation and prescribed buffer zone; and
(C) A description of actions that would alter or destroy the stream, pond, lake, or riparian area.
(2) Uses allowed outright in streams, ponds, lakes, and their buffer zones.
(a) Commission Rule 350-080-0570 shall not apply to proposed uses that would occur in those portions of the main stem of the Columbia River that adjoin the Urban Area.
(b) The following uses are allowed in streams, ponds, lakes, and their buffer zones without review, if they:
(A) Are conducted using best management practices;
(B) Do not require structures, grading, draining, flooding, ditching, vegetation removal, or dredging beyond the extent specified below; and
(C) Comply with all applicable federal, state, and county laws:
(i) Fish and wildlife management uses conducted by federal, state, or Indian tribal resource agencies.
(ii) Soil, water, and vegetation conservation uses that protect water quality, natural drainage, and fish and wildlife habitat of streams, ponds, lakes, and riparian areas.
(iii) Low-intensity recreation uses, including hunting, fishing, trapping, bird watching, hiking, boating, swimming, and canoeing.
(iv) Non-commercial harvesting of wild crops, such as ferns, moss, berries, tubers, tree fruits, and seeds in a manner that does not injure natural plant reproduction or impact sensitive plant species.
(v) Agriculture, except new cultivation. Any operation that would cultivate land that has not been cultivated, or has lain idle, for more than 5 years shall be considered new cultivation and shall require a review use permit. For this guideline cultivation and vegetation removal may be allowed in conjunction with a home garden.
(vi) Ditching, tilling, dredging, or grading conducted solely for the purpose of repairing and maintaining existing irrigation and drainage systems necessary for agriculture, provided that such uses are not undertaken to cultivate lands that have not been cultivated, or have lain idle, for more than 5 years.
(vii) Commercial fishing and trapping.
(viii) Educational uses and scientific research.
(ix) Navigation aids, including structures covered by Section 17(a)(3) of the Scenic Area Act.
(x) Forest practices that do not violate conditions of approval for other approved uses.
(xi) Repair, maintenance, and operation of existing and serviceable structures, trails, roads, railroads and utility facilities.
(3) The following uses may be allowed in streams, ponds, lakes and riparian areas when approved pursuant Commission Rule 350-080-0570(5), and reviewed under the applicable provisions of Commission Rule 350-080-0520 through 350-080-0620:
(a) The modification, expansion, replacement, or reconstruction of serviceable structures, provided that such actions would not:
(A) Increase the size of an existing structure by more than 100 percent,
(B) Result in a loss of water quality, natural drainage, and fish and wildlife habitat, or
(C) Intrude further into a stream, pond, lake, or buffer zone. New structures shall be considered intruding further into a stream, pond, lake, or buffer zone if any portion of the structure is located closer to the stream, pond, lake, or buffer zone than the existing structure.
(b) The construction of minor water-related recreation structures that are available for public use. Structures in this category shall be limited to boardwalks; trails and paths, provided their surface is not constructed of impervious materials; observation decks; and interpretative aids, such as kiosks and signs.
(c) The construction of minor water-dependent structures that are placed on pilings, if the pilings allow unobstructed flow of water and are not placed so close together that they effectively convert an aquatic area to dry land. Structures in this category shall be limited to public and private docks and boat houses, and fish and wildlife management structures that are constructed by federal, state, or tribal resource agencies.
(4) Uses not listed in Commission Rule 350-080-0570(2) and (3) may be allowed in streams, ponds, lakes, and riparian areas, when approved pursuant to Commission Rule 350-080-0570(6) and reviewed under the applicable provisions of Commission Rule 350-080-0520 through 350-080-0620.
(5) Applications for modifications to serviceable structures and minor water-dependent and water-related structures in aquatic and riparian areas shall demonstrate that:
(a) Practicable alternatives to locating the structure outside of the stream, pond, lake, or buffer zone and/or minimizing the impacts of the structure do not exist;
(b) All reasonable measures have been applied to ensure that the structure will result in the minimum feasible alteration or destruction of water quality, natural drainage, and fish and wildlife habitat of streams, ponds, lakes, and riparian areas;
(c) The structure will be constructed using best management practices;
(d) Areas disturbed during construction of the structure will be rehabilitated to the maximum extent practicable; and
(e) The structure complies with all applicable federal, state, and local laws.
(6) Applications for all other Review Uses in streams, ponds, lakes, and riparian areas shall demonstrate that:
(a) The proposed use is water-dependent, or is not water-dependent but has no practicable alternative as determined by Commission Rule 350-080-0560(6)(a), substituting the term stream, pond, lake, or riparian area as appropriate.
(b) The proposed use is in the public interest as determined by Commission Rule 350-080-0560(6)(b), substituting the term stream, pond, lake, or riparian area as appropriate.
(c) Measures have been applied to ensure that the proposed use results in minimum feasible impacts to water quality, natural drainage, and fish and wildlife habitat of the affected stream, pond, lake, and/or buffer zone. At a minimum, the following mitigation measures shall be considered when new uses are proposed in streams, ponds, lakes, and buffer zones:
(A) Construction shall occur during periods when fish and wildlife are least sensitive to disturbance. Work in streams, ponds, and lakes shall be conducted during the periods specified in "Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources" (Oregon Department of Fish and Wildlife, 1986). In Washington, the Washington Department of Wildlife and Washington Department of Fisheries shall evaluate specific proposals and specify periods for in-water work.
(B) All natural vegetation shall be retained to the greatest extent practicable, including aquatic and riparian vegetation.
(C) Nonstructural controls and natural processes shall be used to the greatest extent practicable.
(D) Bridges, roads, pipeline and utility corridors, and other water crossings shall be minimized and should serve multiple purposes and properties.
(E) Stream channels should not be placed in culverts unless absolutely necessary for property access. Bridges are preferred for water crossings to reduce disruption to streams, ponds, lakes, and their banks. When culverts are necessary, oversized culverts with open bottoms that maintain the channel's width and grade should be used.
(F) Temporary and permanent control measures should be applied to minimize erosion and sedimentation when riparian areas are disturbed, including slope netting, berms and ditches, tree protection, sediment barriers, infiltration systems, and culverts.
(d) Groundwater and surface-water quality will not be degraded by the proposed use.
(e) Those portions of a proposed use that are not water-dependent or have a practicable alternative will be located outside of stream, pond, and lake buffer zones.
(f) The proposed use complies with all applicable federal, state, and county laws.
(g) Unavoidable impacts to aquatic and riparian areas will be offset through rehabilitation and enhancement. Rehabilitation and enhancement shall achieve no net loss of water quality, natural drainage, and fish and wildlife habitat of the affected stream, pond, lake, and/or buffer zone. When a project area has been disturbed in the past, it shall be rehabilitated to its natural condition to the maximum extent practicable. When a project area cannot be completely rehabilitated, such as when a boat launch permanently displaces aquatic and riparian areas, enhancement shall also be required. The following rehabilitation and enhancement guidelines shall apply:
(A) Rehabilitation and enhancement projects shall be conducted in accordance with a rehabilitation and enhancement plan.
(B) Natural hydrologic conditions shall be replicated, including current patterns, circulation, velocity, volume, and normal water fluctuation.
(C) Natural stream channel and shoreline dimensions shall be replicated, including depth, width, length, cross-sectional profile, and gradient.
(D) The bed of the affected aquatic area shall be rehabilitated with identical or similar materials.
(E) Riparian areas shall be rehabilitated to their original configuration, including slope and contour.
(F) Fish and wildlife habitat features shall be replicated, including pool-riffle ratios, substrata, and structures. Structures include large woody debris and boulders.
(G) Stream channels and banks, shorelines, and riparian areas shall be replanted with native plant species that replicate the original vegetation community.
(H) Rehabilitation and enhancement efforts shall be completed no later 90 days after the aquatic area or buffer zone has been altered or destroyed, or as soon thereafter as is practicable.
(I) Three years after an aquatic area or buffer zone is rehabilitated or enhanced, at least 75 percent of the replacement vegetation must survive. The owner shall monitor the replacement vegetation and take corrective measures to satisfy this guideline.
(7) Stream, Pond, and Lake Buffer Zones:
(a) Buffer zones shall generally be measured landward from the ordinary high water-mark on a horizontal scale that is perpendicular to the ordinary high water-mark. On the main stem of the Columbia River above Bonneville Dam, buffer zones shall be measured landward from the normal pool elevation of the Columbia River. The following buffer zone widths shall be required:
(A) Streams used by anadromous or resident fish (tributary fish habitat), special streams, intermittent streams that include year-round pools, and perennial streams: 100 feet;
(B) Intermittent streams, provided they are not used by anadromous or resident fish: 50 feet;
(C) Ponds and lakes: Buffer zone widths shall be based on dominant vegetative community as determined by Commission Rule 350-080-0560(7)(b), substituting the term pond or lake as appropriate.
(b) Except as otherwise allowed, buffer zones shall be retained in their natural condition. When a buffer zone is disturbed by a new use, it shall be replanted with native plant species.
(c) Determining the exact location of the ordinary high watermark or normal pool elevation shall be the responsibility of the project applicant. The Development Review Officer may verify the accuracy of, and may render adjustments to, an ordinary high water-mark or normal pool delineation. In the event the adjusted boundary delineation is contested by the applicant, the Development Review Officer shall, at the project applicant's expense, obtain professional services to render a final delineation.
(8) Rehabilitation and Enhancement Plans. Rehabilitation and enhancement plans shall be prepared when a project applicant is required to rehabilitate or enhance a stream, pond, lake and/or buffer area. They shall satisfy the following guidelines:
(a) Rehabilitation and enhancement plans are the responsibility of the project applicant; they shall be prepared by qualified professionals, such as fish or wildlife biologists.
(b) All plans shall include an assessment of the physical characteristics and natural functions of the affected stream, pond, lake, and/or buffer zone. The assessment shall include hydrology, flora, and fauna.
(c) Plan view and cross-sectional, scaled drawings; topographic survey data, including elevations at contour intervals of at least 2 feet, slope percentages, and final grade elevations; and other technical information shall be provided in sufficient detail to explain and illustrate:
(A) Soil and substrata conditions, grading and excavation, and erosion and sediment control needed to successfully rehabilitate and enhance the stream, pond, lake, and buffer zone.
(B) Planting plans that specify native plant species, quantities, size, spacing, or density; source of plant materials or seeds; timing, season, water, and nutrient requirements for planting; and where appropriate, measures to protect plants from predation.
(C) Water-quality parameters, construction techniques, management measures, and design specifications needed to maintain hydrologic conditions and water quality.
(d) A 3-year monitoring, maintenance, and replacement program shall be included in all rehabilitation and enhancement plans. At a minimum, a project applicant shall prepare an annual report that documents milestones, successes, problems, and contingency actions. Photographic monitoring shall be used to monitor all rehabilitation and enhancement efforts.
(e) A project applicant shall demonstrate sufficient fiscal, administrative, and technical competence to successfully execute and monitor a rehabilitation and enhancement plan.
Stat. Auth.: ORS 196.150
Stats. Implemented: ORS 196.150; RCW 43.97.015; 16 U.S.C. § 544 et seq.
Hist.: CRGC 2-1993 (Temp), f. 5-6-93, cert. ef. 6-1-93; CRGC 4-1993, f. & cert. ef. 8-4-93; CRGC 5-1994, f. 12-27-94, cert. ef. 2-1-95; CRGC 1-1995(Temp), f. & cert. ef. 7-25-95
350-080-0580
General Management Area Sensitive Wildlife Review Criteria
(1) Sensitive Wildlife Areas and Sites and Site Plans Near Sensitive Wildlife:
(a) Proposed uses shall not adversely affect sensitive wildlife areas or sensitive wildlife sites:
(A) "Sensitive wildlife areas" in the Columbia Gorge means the following land and water areas that appear in the wildlife inventory map prepared and maintained by the Gorge Commission:
(i) Bald eagle habitat;
(ii) Deer and elk winter range;
(iii) Elk habitat;
(iv) Mountain goat habitat;
(v) Peregrine falcon habitat;
(vi) Pika colony area;
(vii) Pileated woodpecker habitat;
(viii) Pine marten habitat;
(ix) Shallow water fish habitat (Columbia R.);
(x) Special streams;
(xi) Special habitat area;
(xii) Spotted owl habitat;
(xiii) Sturgeon spawning area;
(xiv) Tributary fish habitat;
(xv) Turkey habitat;
(xvi) Waterfowl area;
(xvii) Western pond turtle habitat.
(B) "Sensitive wildlife sites" means sites that are used by animal species that are:
(i) Listed as endangered or threatened pursuant to federal or state endangered species acts;
(ii) Listed as endangered, threatened, sensitive, or candidate by the Washington Wildlife Commission;
(iii) Listed as sensitive by the Oregon Fish and Wildlife Commission; or
(iv) Considered to be of special interest to the public (limited to great blue heron, osprey, golden eagle, and prairie falcon).
(b) In addition to the information required in all site plans, site plans for uses within 1,000 feet of a sensitive wildlife area or site shall include a map prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail.
(2) The following uses may be allowed within 1,000 feet of sensitive wildlife areas and sites without review, if they do not involve new structures, vegetation removal, or actions that disturb the ground, such as grading, or ditching beyond the extent specified below:
(a) Agriculture, except new cultivation. Any operation that would cultivate land that has not been cultivated, or has lain idle, for more than 5 years shall be considered new cultivation.
(b) Ditching, tilling, dredging, or grading conducted solely for the purpose of repairing and maintaining existing irrigation and drainage systems necessary for agriculture, provided that such uses are not undertaken to cultivate lands that have not been cultivated, or have lain idle, for more than 5 years.
(c) Forest practices that do not violate conditions of approval for other approved uses.
(d) Repair, maintenance, and operation of existing and serviceable structures, trails, roads, railroads and utility facilities.
(e) Fish and wildlife management uses conducted by federal, state, or Indian tribal resource agencies.
(3) Field Survey. A field survey to identify sensitive wildlife areas or sites shall be required for:
(a) Land divisions that create four or more parcels;
(b) Recreation facilities that contain parking areas for more than 10 cars, overnight camping facilities, boat ramps, and visitor information and environmental education facilities;
(c) Public transportation facilities that are outside improved rights-of-way;
(d) Electric facilities, lines, equipment, and appurtenances that are 33 kilovolts or greater; and
(e) Communications, water and sewer, and natural gas transmission (as opposed to distribution) lines, pipes, equipment, and appurtenances.
(f) Field surveys shall cover all areas affected by the proposed use or recreation facility. They shall be conducted by a professional wildlife biologist hired by the project applicant. All sensitive wildlife areas and sites discovered in a project area shall be described and shown on the site plan map.
(4) Uses not listed in Commission Rule 350-080-0580(2) may be allowed within 1,000 feet of a sensitive wildlife area or site, when approved pursuant to Commission Rule 350-080- 0580(5) and reviewed under the applicable provisions of Commission Rule 350-080-0520 through 350-080-0620.
(5) Uses that are proposed within 1,000 feet of a sensitive wildlife area or site shall be reviewed as follows:
(a) Site plans shall be submitted to the Oregon Department of Fish and Wildlife or the Washington Department of Wildlife by the Development Review Officer. State wildlife biologists will review the site plan and their field survey records and:
(A) Identify/verify the precise location of the wildlife area or site,
(B) Ascertain whether the wildlife area or site is active or abandoned, and
(C) Determine if the proposed use may compromise the integrity of the wildlife area or site or occur during the time of the year when wildlife species are sensitive to disturbance, such as nesting or rearing seasons. In some instances, state wildlife biologists may conduct field surveys to verify the wildlife inventory and assess the potential effects of a proposed use.
(b) The following factors may be considered when site plans are reviewed:
(A) Biology of the affected wildlife species.
(B) Published guidelines regarding the protection and management of the affected wildlife species. The Oregon Department of Forestry has prepared technical papers that include management guidelines for osprey and great blue heron. The Washington Department of Wildlife has prepared similar guidelines for a variety of species, including the western pond turtle, the pereguine falcon, and the Larch Mountain salamander (Rodrick and Milner, 1991).
(C) Physical characteristics of the subject parcel and vicinity, including topography and vegetation.
(D) Historic, current, and proposed uses in the vicinity of the sensitive wildlife area or site.
(E) Existing condition of the wildlife area or site and the surrounding habitat and the useful life of the area or site.
(c) The wildlife protection process may terminate if the Development Review Officer, in consultation with the state wildlife agency, determines:
(A) The sensitive wildlife area or site is not active, or
(B) The proposed use would not compromise the integrity of the wildlife area or site or occur during the time of the year when wildlife species are sensitive to disturbance.
(d) If the Development Review Officer, in consultation with the state wildlife agency, determines that the proposed use would have only minor effects on the wildlife area or site that could be eliminated by simply modifying the site plan or regulating the timing of new uses, a letter shall be sent to the applicant that describes the effects and measures needed to eliminate them. If the project applicant accepts these recommendations, the Development Review Officer will incorporate them into the development review order and the wildlife protection process may conclude.
(e) The project applicant shall prepare a wildlife management plan if the Development Review Officer, in consultation with the state wildlife agency, determines that the proposed use would adversely affect a sensitive wildlife area or site and the effects of the proposed use cannot be eliminated through site plan modifications or project timing. (continued)