Oregon Wetland Planning Workshop Oregon Department of State

Oregon Wetland Planning Workshop Oregon Department of State Lands Oregon Department of Land Conservation and Development

Outline 1. Introduction 2. Planning & Regulatory Framework 3. Local Wetland Inventories 4. Goal 5 Planning; Overview 4. 4 Standard Approach

Outline 4. 5 Safe Harbor Approach 4. 6 Choosing an Approach 4. 8 Coordinating with Other Goals 4. 12 Public Involvement 5. Developing a Program

Acknowledgements

Why Plan for Wetlands Point 1 Reduce uncertainty for future development Point 2 Provide adequate amounts of buildable land within the Urban Growth Boundary (UGB) Point 3 Enhance economic benefits from wetlands

Why Plan for Wetlands Point 4 Optimize wetlands' recreational, educational, and aesthetic values Point 5 Retain flood control functions of wetlands Point 6 Maintain or improve water quality of streams & lakes

Why Plan for Wetlands Point 7 Conserve aquatic and terrestrial habitat for plants and animals Point 8 More effective resource protection than state / federal permit program alone.

Oregon Planning System • 19 Statewide Planning Goals • Oregon Revised Statutes • Oregon Administrative Rules • Local Government Process - Comprehensive plans - Regulations and ordinances

Wetland Planning and Permitting Mandates • Federal Clean Water Act, Section 401 and Section 404 (EPA, Corps) • Oregon State Removal-Fill Law (DSL) • Oregon Land Use Planning Goals 5, 6, 17 (DLCD) • National Food Security Act (NRCS) “Swampbuster” (no role in cities)

Agency Roles and Responsibilities Wetland Planning Responsibilities Local • Cities and counties Goal 5 wetland inventories, comprehensive plan policies, implementation ordinances. State • DSL - Technical assistance with LWIs. • DLCD - Review of comprehen-sive plans; periodic review. • ODFW - Advisory role only. Federal • EPA - Occasionally provides wetland planning grants. • Corps - May authorize a special area management plan (SAMP) in concert with a WCP.

Agency Roles and Responsibilities Wetland Regulatory Responsibilities Local • Review wetland permits for consistency with comprehensive plans. • Send land-use notifications to DSL for wetland sites proposed for development. State Federal • DSL - Permitting • Corps - Section 404 permits (discharge into for removal and wetlands) & Section 10 fill in wetlands. • DLCD - Review of fill permits in coastal zone. permits (navigational impacts in waterways). • NMFS and USFWS review permits for T&E species or habitat • ODFW - May effects. comment on • EPA, USFWS, NMFS permits. May comment on Corps permit applications • DEQ - Section even absent ESA issues. 401 certification.

What is an LWI? • Comprehensive survey of all wetlands in UGB • Description of each site • Mapping, documentation and process is specified in administrative rule • Must use same definition of wetlands as regulations • Flags future issues for both developers and city

LWI Example Disclaimer: LWIs are for planning purposes only. Wetland delineations are still necessary for development permits.

Local Wetland Inventories Process Steps • Find Funding • Public Involvement • Preliminary Mapping • Fieldwork – Onsite/Offsite • Final Mapping • DSL Review and Approval • Land Owner Notification

Oregon Freshwater Wetland Assessment Methodology (OFWAM) Elements to Assess 1. Wildlife habitat, 2. Fish habitat, 3. Water quality, 4. Hydrologic control, 5. Sensitivity to impact, 6. Enhancement potential, 7. Educational potential, 8. Recreational potential, and 9. Aesthetic quality.

Locally Significant Wetland (LSW) Criteria Include: • Highest OFWAM rank for any of the four ecological functions: - Wildlife habitat - Fish habitat - Water quality - Hydrologic control • Inhabited by any species listed by the federal or state government as threatened or endangered. • Others, including 2 optional criteria for local discretion. • See OAR 141. 86 300 to 350 for complete list of criteria.

Scoping the Inventory • How much land will be inventoried? • Do lands outside the city limits but within the UGB need to be inventoried? If so, coordinate with county planners. • What Goal 5 approach will be used - Safe Harbor or the standard process? • Can other inventories (riparian or wildlife) be conducted concurrently?

Scoping the Inventory • What staff resources are available to conduct the inventory? Are consultants needed? • What funding sources are there for the project? Are grants available? Is there a required local match? • Should a wetland conservation plan be prepared instead?

Tips for a Successful LWI Product • Define needs and objectives. • Obtain Council or Commissioner support • Educate and involve the public • Dedicate staff • Conduct fieldwork in the spring • Secure citizen cooperation and site access • Employ experienced wetland scientists • Keep study area manageable (split if necessary)

Oregon’s Wetland Planning Process Using Goal 5 • Planning Context and History • Goal 5 Management Options • Goal 5 Process - Standard Process/Safe Harbor • Wetland Conservation Plans • Choosing an Approach • Coordination with Other Goals • Special Circumstance

Goal 5 Process

For Counties Only: • LWIs not required outside of UUCs and UGBs • Use current acknowledged inventories and regulations or adopt the SWI to notify DSL of applications affecting mapped wetlands • County must follow the wetland planning process in rule to develop new inventories and determine significant wetlands (cannot use NWI) • Coordinate planning with cities as required

Standard Process or Safe Harbor • Standard Process Review each resource • Safe Harbor Prescribed set of standards

Standard Goal 5 Process • Identify the impact areas • Examine conflicting uses • Analyze the ESEE consequences: Economic, Social, Environmental, and Energy • Incorporate conclusions in final plan inventory • Adopt local regulatory program Standard Approach

Impact Areas ". . . the geographic area within which conflicting uses could adversely affect a significant wetland” (OAR 660 -023 -010[3]). • Community may define impact areas • Be specific - measurable and mappable • Document reasons • Justify it scientifically - use soil type, slope, • and vegetation - be consistent May vary based on location, for example: - Developed areas - adjacent properties - Floodplain - across many properties Standard Approach

Impact Area Examples • Uniform distance buffer • Identifiable topographic features • Adjacent properties • Drainage basins or sub-basins • The area around a wetland that could have supplemental zoning for environmental protection • A combination of methods Standard Approach

Impact Area Matrix • List zoning and lot for the wetland resource and the impact area Standard Approach

Conflicting Uses A land use or other activity that "could adversely affect” a significant wetland (OAR 660 -023 -010[1]). Land Uses: • Zoning which allows new development • Building a house or constructing a street Activities: • Excavating and grading • Alterations changing the quantity or quality of water affecting the wetland - new impervious surface - removal of vegetation - changes to drainageways, discharges, & shading Standard Approach

Conflict Reductions Existing plans or regulations may reduce the number of conflicts: • Programs for Goals 6, 7, or 15 through 19 • Regional protection - Metro Title 3 • Clean Water Services in Washington County • NMFS 4(d) rule response Standard Approach

Conflicting Use Steps 1. Review local planning and zoning codes - allowed outright - conditional uses 2. Review land management activities - excavation and grading - herbicide and pesticide application - vegetation removal 3. Planned Improvements - public facilities plans - transportation system plans - capital improvement plans - park and recreation master plans 4. Property Owner Plans Standard Approach

Conflicting Use Matrix Standard Approach

Overview of ESEE Consequences Analysis • • Economic Social Environmental Energy Determine whether conflicts should be: – Prohibited – Allowed – Limited Standard Approach

ESEE Example Address: • Positive and negative ESEE consequences • Wetland site and impact areas Example: Allowing a residential use on a wetland site • Economic: Higher return on owner investment • Social: Effect on urban amenities, density, loss of aesthetic views • Environmental: New impervious surfaces accelerate runoff, loss of flood control function, loss of wildlife habitat • Energy: More efficient use of land transportation routes Standard Approach

ESEE Matrix Standard Approach

Two-Part ESEE Approach Part One - Generic ESEE Analysis • Apply to similar sites • Address protection options by conflicting • • use categories Develop ESEE consequences list Use text or matrix Standard Approach

Two-Part ESEE Approach Part Two - Site Specific ESEE Analysis • Apply to complex sites - overlapping environmental issues - subject to multiple or unusual regulation - controversial issues • Use text or matrix Tip: Anticipate property owner concerns and commit to a full site-specific analysis on controversial sites Standard Approach

Program Decision Either: • Prohibit Conflicts • Fully Allow Conflicts, or • Limit Conflicts Example: For a wetland in a planned town center • Severe economic consequences if conflicts • • prohibited Environmental impact too great to fully allow conflicts Limit impacts with standards Standard Approach

How Much Detail is Needed for the Analysis? In assessing the level of detail needed, consider the following: • Are property owners objecting? • Is public concern organized? • Is there a threat of appeal? Have attorneys been involved? • Would local protection of the resource affect the amount of buildable land? • Is the decision highly complex? Does it require a trade-off of community objectives and values? Standard Approach

Standard Goal 5 Recap Shortcuts and Tips • Narrowly define impact areas • Categorize conflicting uses • Code the ESEE analysis • Group similar sites • Provide more detail where needed Tip: Focus on Economic and Environmental Impacts Standard Approach

The Safe Harbor Process 1996 Goal 5 Administrative Rule (OAR 660, Division 23) establishes safe harbor regulations for: • Wetlands • Riparian Areas • Wildlife Habitat Areas Safe Harbor Approach

Wetland Safe Harbor Steps • Conduct LWI • Complete LSW • Adopt Inventory • Adopt Safe Harbor Program • Alternative to conflicting use and ESEE analysis Safe Harbor Approach

Wetland Safe Harbor Protection Regulatory restrictions on: • Grading • Excavation • Placement of fill • Vegetation removal Minimum and maximum provision - no greater protections can be imposed. 1. No flexibility is permitted in terms of allowing a conflicting use 2. No upland buffers can be applied Safe Harbor Approach

FYI: Goal 5 Riparian Safe Harbor • If a city chooses to pursue riparian safe harbor protections, significant wetlands within riparian corridors get a setback based on stream size • Applies to fish-bearing streams - see ODF and ODFW maps • Does not affect non-riparian wetlands Safe Harbor Approach

Combined Approach: Standard Process and Safe Harbor • Separate approaches are allowed for separate wetland units. • A wetland unit includes hydrologically connected wetlands • Cannot separate wetland units by political or ownership boundaries Combined Approach

Wetland Conservation Plans (WCP) • Alternative to Goal 5 or Goal 17 process • Purposes include: - Comprehensive wetland plan that meets diverse local needs; optional local permitting - Provides regulatory certainty for landowners, unlike Goal 5/17 which only designates protection sites • Provides better overall wetland management by providing broad context for permit decisions WCP Approach

WCP Elements • More detailed LWI (higher standards) • Functional assessment of all wetlands • Analysis of historical wetland losses • Development of WCP goals • Designation of all wetlands into categories: development, conservation or protection • Mitigation plan to cover planned impacts • Policies & implementing ordinances • Monitoring plan WCP Approach

Wetland Planning Recap Goal 5 Options • Standard Approach - Conflicting Use and ESEE Analysis • Safe Harbor - Standard procedures and protection requirements • Combination - Standard Approach and Safe Harbor • Wetland Conservation Plan

Choosing an Approach: A Comparison

Goal 5 Approach Decision Checklist 1. Are there many significant wetlands? 2. Are there many potential conflicts? Are there numerous wetlands on sites planned and zoned for development? 3. What is the level of public interest? Are they supportive of a high level of wetland protection? 4. Are elected officials knowledgeable and supportive? 5. Will there be adequate funding and staffing for more detailed analyses?

Coordinating with Goals 6 and 7 Goal 6 - Water, Air, and Land Resources Quality For example - water quality protection programs Goal 7 - Areas Subject to Natural Disasters and Hazards For example - floodplain and steep slope protection Tip: Goal 6 and 7 protection measures in place can reduce conflicting uses in Goal 5 analysis Coordinating with Other Planning Goals / Programs

Coordinating with: Goals 9, 10, and 14 – Economy, Housing, and Urbanization Goal 5 allows you to amend UGBs to compensate for the loss of any land determined to be unbuildable through the wetland planning process (OAR 660 -23 -070). Goal 15 – Willamette River Greenway provisions may provide additional protection for wetlands and associated riparian vegetation. Coordinating with Other Planning Goals / Programs

Coordinating with Coastal Goals 16 through 19 – Coastal Goals Goal 16 - Estuarine Resources Goal 17 - Coastal Shorelands Goal 18 - Beaches and Dunes Goal 19 - Ocean Resources Coordinating with Other Planning Goals / Programs

Coordinating with Goal 17 Coastal Shorelands Applies west of Hwy 101, within 1, 000 ft of estuaries, and within 500 ft of coastal lakes (exceptions in Lincoln and Tillamook counties). • Use LWI, OFWAM, and LSW • Protect significant resources • ESEE analysis is not appropriate under Goal 17 LCDC has determined that Goal 5 safe harbor protection standards for wetlands will satisfy Goal 17 requirements. Coordinating with Other Planning Goals / Programs

Coordinating with The Endangered Species Act (ESA) Opportunity to coordinate with local plans to protect fish habitat • Habitat Conservation Plans under Section 10 of the ESA or • ESA Section 4(d) response plans Local compliance plans can include riparian and wetland protection and stormwater management. WARNING: NMFS may find Goal 5 safe harbor buffers inadequate to ensure properly functioning condition under ESA guidelines. Coordinating with Other Planning Goals / Programs

Coordinating with Metro Area Requirements • Region 2040 Functional Plan - Title III addresses water quality under Goal 6 • Setbacks and riparian buffers are required for wetlands and streams • Buffer widths vary depending on slope, but the base distance is 50 feet. Coordinating with Other Planning Goals / Programs

Tips for Successful Project Management 1. Link the inventory, analysis, and implementation steps 2. Good technical information will support the political process 3. Monitor progress and make adjustments as needed • Be aware of the schedule and planned milestones • Work closely with consultants and monitor their progress • Identify and work with concerned citizens • Provide regular progress reports

Methods of Public Involvement • How extensive should the public involvement process be? • Should a citizen advisory committee be established? A technical advisory committee? • Should you hold open houses and workshops? Public Involvement

Public Involvement Opportunities • Project Initiation / Access Request • Draft Inventory / OFWAM • Final Inventory / Significance Analysis / Draft Goal 5 Strategy • Impact Areas / Conflicting Use Identification / Draft ESEE • Final ESEE Analysis / Draft Implementation Program • Final Implementation program Public Involvement

Who to Include in the Process • Affected property owners • Real estate industry/development community • Environmental interest groups • Neighborhood associations • Watershed councils • State and federal agency representatives • Parks and Public Works department staff or commission members • Planning commissioners and elected officials Public Involvement

Tips for a Successful Public Involvement Program • Maintain an open process • Be inclusive – err on the side of over-noticing • Strive for no surprises – avoid “This is the first I’ve heard of this. ” • Partner with watershed councils & neighborhood associations • Have accurate maps map errors diminish credibility Public Involvement

Developing a Program - What Is Required? • Adopt a safe harbor ordinance (OAR 660 -23 -100 (4)) • Or complete the standard Goal 5 process (OAR 660 -23 -050) and: - adopt comprehensive plan provisions - land use regulations consistent with the ESEE analysis • Continue to submit wetland use notices to DSL for mapped wetlands. Program Elements

FYI: Wetland Land Use Notice Requirements (OAR 660 -23 -100(7)) • Add to ordinance for both cities and counties • Use best wetland inventory map to screen site development applications • DSL responds regarding permit requirements Program Elements

Program Options Under Standard Goal 5 Process • Allow a conflicting use • Prohibit conflicting uses • Limit conflicting uses Program Elements

Allowing a Conflicting Use Example: Street extension • Decisions must be documented and listed in the comprehensive plan • Specifically list the conflicting uses that are allowed and their locations • Include an exemption section in the wetland protection ordinance Note: May still require a removal/ fill permit from DSL or the Corps. Program Elements

Prohibiting Conflicting Uses • Comprehensive plan policies should clearly state the intent for full protection • May be accomplished through regulation • Will often require a combination of regulation and transfer of development rights or ownership Program Elements

Limiting Conflicting Uses • Most communities use a process that limits conflicts • Include regulations that list the uses that are limited and the uses that are allowed under special conditions • Allows certain conflicting uses subject to a conditional use or design review process Program Elements

Protection Measures Under the Standard Goal 5 Process • The Goal 5 rule requires clear and objective standards • Option to also include an alternative approval process based on discretionary standards Program Elements

Clear and Objective Standards • Numerical standards, such as a 50 -foot setback from the edge of the wetland • Nondiscretionary requirements, such as prohibiting the removal of native vegetation within the resource site • Performance standards that describe an outcome to be achieved, such as maintaining vegetative shade Program Elements

Safe Harbor Ordinance • Restrictions on grading, excavation, placement of fill, and vegetation removal • Inclusion of a variance procedure to address map errors and hardship Program Elements

Summary: Possible Outcomes ESEE: • No protection • Partial protection • Protect significant wetlands (may include upland buffer) Safe Harbor: • Protect wetland only Program Elements

Ordinance Structure: General Regulations or Overlay Zone • Overlay zone will generally be mapped on official city maps that will serve as a "red-flag" notice • Maps need to be updated • Exact boundaries are subject to field verification Program Elements

What to Include in an Ordinance • Purpose statement • Applicability • Development review authority and process • Review criteria • Development standards addressing issues such as excavation, fill, riparian vegetation removal, mowing, and buffers • Exceptions, variances • Buffers (standard approach only) • Coordination with riparian protection Program Elements

Non-Regulatory Approaches to Wetland Protection • Property Acquisition • Density Transfer • Park Dedications • Public Education • Adopt-a-wetland

Top Five Tips for Implementation 1. Use multiple approaches - include incentives as well as regulations 2. Include a public education program 3. Combine a safe harbor ordinance for wetlands with riparian protection 4. Adopt the wetland inventory separately if the implementing ordinance will lag too far behind 5. Conduct informational workshop prior to the hearings