Over 40 percent of the lands in Malheur County have been designated as core habitat for sage grouse by the Oregon Department of Fish and Wildlife ("ODFW"). Other counties in southeastern Oregon are also heavily affected. ODFW's approach was to simply recommend against any development in core habitat, without consideration whether off-site mitigation could result in net benefit. For energy and mining developments in particular, it seemed likely that the Energy Facility Siting Council ("EFSC") and the Department of Geology and Mineral Industries ("DOGAMI") would defer to ODFW's recommendation. This approach threatened the economic vitality of southeastern Oregon.
Stoel Rives assisted Representative Bentz of Malheur County, who introduced HB 3086. The Governor signed the bill and it became effective August 1, 2013. HB 3086 requires ODFW to (1) review and revise the sage grouse mapping at least every five years and (2) ensure that any mitigation policy does not result in a net loss of, and provides a net benefit to, either quality or quantity of sage grouse habitat.
Further, HB 3086 allows a private party to get a determination from ODFW, at the beginning of the permitting process, as to whether off-site mitigation will provide a net benefit, allowing core habitat to be disturbed. A person seeking a development permit from a state agency (such as EFSC or DOGAMI) that may affect core area habitat of sage grouse can file a report at any time in the permitting process, evaluating whether the habitat is essential and irreplaceable and whether off-site mitigation can provide a net benefit. ODFW would be required to evaluate the report and determine whether the proposal for off-site mitigation would result in a net loss or net benefit to the quality or quantity of sage grouse habitat. If ODFW agrees that there is a net benefit, then the project would proceed through all the normal permitting processes, including the development of a detailed off-site mitigation plan. Contrary to previous ODFW policy, if off-site mitigation is shown to provide a net benefit, a project may disturb core habitat. If ODFW disagrees with the study, an appeal is available.
If you have any questions about the content of this alert, please contact your Stoel Rives attorney or a key contributor.