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Oregon Fish and Wildlife Habitat Mitigation Policy (12-OR-b)

This flowchart illustrates the procedures required when a project will impact the habitat of fish and wildlife in the state of Oregon. The Oregon Department of Fish and Wildlife (“Department”) implements the mitigation policy.

The purpose of the mitigation policy is to apply consistent goals and standards to mitigate impacts to fish and wildlife habitat caused by land and water development actions.

It is the policy of the Department to require or recommend, depending on the habitat protection and mitigation opportunities provided by specific statutes, mitigation for losses of fish and wildlife habitat resulting from development actions. Priority for mitigation actions shall be given to habitat for native fish and wildlife species. Mitigation actions for non-native fish and wildlife species may not adversely affect habitat for native fish and wildlife.

Any written mitigation plan prepared for the department must:

  • Include the information required in OAR 635-415-0020(4)(a)-(d);
  • Describe the mitigation actions which must be taken to achieve the fish and wildlife habitat mitigation goals and standards of OAR 635-415-0025;
  • Describe and map the location of the development action and mitigation actions including the latitude and longitude, township, range, section, quartersection and county;
  • Complement and not diminish mitigation provided for previous development actions;
  • Include protocols and methods, and a reporting schedule for monitoring the effectiveness of mitigation measures. Monitoring efforts must continue for a duration and at a frequency needed to ensure that the goals and standards in OAR 635-415-0025 are met, unless the Department determines that no significant benefit would result from such monitoring;
  • Provide for future modification of mitigation measures that may be required to meet the goals and standards of OAR 635-415-0025;
  • Be effective throughout the project life or the duration of project impacts whichever is greater; and
  • Contain mitigation plan performance measures.


Fish and Wildlife Habitat Mitigation Policy Process

12-OR-b.1 to 12-OR-b.2 - Will the Project Affect a Fish or Wildlife Habitat?

If the project will affect a fish or wildlife habitat, then the developer is required to develop a mitigation plan.

If the project will not affect a fish or wildlife habitat, then the developer may continue with the project without a mitigation plan.

12-OR-b.3 to 12-OR-b.5 – Is the Affected Area in a Category 1 Habitat?

“Habitat Category 1” is irreplaceable, essential habitat for a fish or wildlife species, population, or a unique assemblage of species and is limited on either a physiographic province or site-specific basis, depending on the individual species, population or unique assemblage. The mitigation goal for Category 1 habitat is no loss of either habitat quantity or quality. OAR 635-415-0025(1).

The Department must act to protect Category 1 habitats by recommending or requiring:

  • Avoidance of impacts through alternatives to the proposed development action; or
  • No authorization of the proposed development action if impacts cannot be avoided.

If the impacts to fish and wildlife cannot be avoided in the category 1 habitat, then the Department will give no authorization for the proposed project.

12-OR-b.6 to 12-OR-b.8 – Is the Affected Area in a Category 2, 3, 4, 5, or 6 Habitat?

Habitat Category 2

“Habitat Category 2” is essential habitat for a fish or wildlife species, population, or unique assemblage of species and is limited either on a physiographic province or site-specific basis depending on the individual species, population or unique assemblage. If impacts are unavoidable, the mitigation goal is no net loss of either habitat quantity or quality and to provide a net benefit of habitat quantity or quality. OAR 635-415-0025(2).

The Department must act to achieve the mitigation goal for Category 2 habitat by recommending or requiring:

  • Avoidance of impacts through alternatives to the proposed development action; or
  • Mitigation of impacts, if unavoidable, through reliable in-kind, in-proximity habitat mitigation to achieve no net loss of either pre-development habitat quantity or quality. A net benefit of habitat quantity or quality must be provided. Progress towards achieving the mitigation goals and standards must be reported on a schedule agreed to in the mitigation plan performance measures. The fish and wildlife mitigation measures must be implemented and completed either prior to or concurrent with the development action.

Habitat Category 3

“Habitat Category 3” is essential habitat for fish and wildlife, or important habitat for fish and wildlife that is limited either on a physiographic province or site-specific basis, depending on the individual species or population. If impacts are unavoidable, the mitigation goal is no net loss of either habitat quantity or quality. OAR 635-415-0025(3).

The Department must act to achieve the mitigation goal for Category 3 habitat by recommending or requiring:

  • Avoidance of impacts through alternatives to the proposed development action; or
  • Mitigation of impacts, if unavoidable, through reliable in-kind, in-proximity habitat mitigation to achieve no net loss in either pre-development habitat quantity or quality. Progress towards achieving the mitigation goals and standards must be reported on a schedule agreed to in mitigation plan performance measures. The fish and wildlife mitigation measures must be implemented and completed either prior to or concurrent with the development action.

If the mitigation cannot be achieved, ODFW must recommend against or must not authorize the proposed development action.

Habitat Category 4

“Habitat Category 4” is important habitat for fish and wildlife species. If impacts are unavoidable, the mitigation goal is no net loss of either habitat quantity or quality. OAR 635-415-0025(4).

The Department must act to achieve the mitigation goal for Category 4 habitat by recommending or requiring:

  • Avoidance of impacts through alternatives to the proposed development action; or
  • Mitigation of impacts, if unavoidable, through reliable in-kind or out-of-kind, in-proximity or off-proximity habitat mitigation to achieve no net loss in either pre-development habitat quantity or quality. Progress towards achieving the mitigation goals and standards must b reported on a schedule agreed to in the mitigation plan performance measures. The fish and wildlife mitigation measures must be implemented and completed either prior to or concurrent with the development action.

If the mitigation cannot be achieved, the department must recommend against or must not authorize the proposed development action.

Habitat Category 5

“Habitat Category 5” is habitat for fish and wildlife having high potential to become either essential or important habitat. If impacts are unavoidable, the mitigation goal is to provide a net benefit in habitat quantity or quality. OAR 635-415-0025(5).

The Department must act to achieve the mitigation goal for Category 5 habitat by recommending or requiring:

  • Avoidance of impacts through alternatives to the proposed development action; or
  • Mitigation of impacts, if unavoidable, through actions that contribute to essential or important habitat.

If the mitigation cannot be achieved, the department must recommend against or must not authorize the proposed development action.

Habitat Category 6

“Habitat Category 6” is habitat that has low potential to become essential or important habitat for fish and wildlife. The mitigation goal is to minimize impacts. OAR 635-415-0025(6).

The Department must act to achieve the mitigation goal for Category 6 habitat by recommending or requiring actions that minimize direct habitat loss and avoid impacts to off-site habitat.

12-OR-b.9 to 12-OR-b.10 – Has ODFW Required a Bond or Payment-to-Provide to Cover Mitigation?

Bond The Department may require or recommend the posting of a bond, or other financial instrument, to cover the cost of mitigation actions based on the nature, extent, and duration of the impact and/or the risk of the mitigation plan not achieving mitigation goals.

Payment-to-Provide Mitigation The Department may consider the use of mitigation banks or payment-to-provide mitigation based on the nature, extent, and duration of the impact and/or the risk of the mitigation plan not achieving mitigation goals.

The Department may consider the use of mitigation banks and payment-to-provide mitigation only for habitat categories two through six and only if they are consistent with the mitigation goals and standards identified.

The amount of the payment-to-provide mitigation, recommended or required, must include at a minimum the cost of property acquisition, mitigation actions, maintenance, monitoring, and any other actions needed for the long-term protection and management of the mitigation site.

12-OR-b.11 – Conduct Required Mitigation

The developer may continue the project in accordance with the mitigation policies required by the Department.




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