Effective Date of Rule: May 1, 2011.

     Purpose: Changes to all rules except 350-81 were made to clarify and streamline internal commission processes and process for users of commission rules. These changes are needed to reduce workload for commission staff as a result of its significantly reduced budget during the past biennium and going forward. Changes to rule 350-81 are required by remand from the Oregon Court of Appeals and Oregon Supreme Court and were the result of settlement discussions in another pending litigation matter. Interested persons may contact the commission office for copies of the relevant court decisions. There is no settlement agreement. These changes resulting from the court decisions have already been adopted into the management plan for the national scenic area and received the concurrence of the secretary of agriculture. The changes resulting from the settlement discussions are procedural for users and commission staff.

     Citation of Existing Rules Affected by this Order: Repealing 350-120-0025, 350-120-0030 and 350-120-0040; and amending 350-30-0015, 350-30-0020, 350-30-0025, 350-30-0030, 350-30-0060, 350-30-0080, 350-40-0010, 350-40-0020, 350-40-0050, 350-40-0060, 350-40-0065, 350-40-0070, 350-40-0080, 350-50-0020, 350-50-0035, 350-50-0040, 350-50-0045, 350-50-0060, 350-50-0070, 350-50-0080, 350-50-0085, 350-50-0090, 350-50-0100, 350-60-0040, 350-60-0042, 350-60-0045, 350-60-0050, 350-60-0055, 350-60-0060, 350-60-0070, 350-60-0080, 350-60-0100, 350-60-0110, 350-60-0120, 350-60-0130, 350-60-0160, 350-60-0170, 350-60-0190, 350-60-0200, 350-60-0205, 350-60-0210, 350-70-0040, 350-70-0042, 350-70-0045, 350-70-0050, 350-70-0070, 350-70-0080, 350-70-0090, 350-70-0120, 350-70-0170, 350-70-0200, 350-70-0210, 350-70-0220, 350-70-0225, 350-81-0020, 350-81-0082, 350-81-0540, 350-81-0560, 350-81-0570, 350-81-0580, 350-81-0590, and 350-120-0050.

     Statutory Authority for Adoption: RCW 43.97.015.

     Other Authority: ORS 196.150; 16 U.S.C. § 544e.

      Adopted under notice filed as WSR 11-01-050 on December 7, 2010.

     Changes Other than Editing from Proposed to Adopted Version: 350-50-035(1) was changed to clarify that mapping discrepancies are those created by using maps with different and coarse scales.

     350-50-100(1) was changed to add a minimum of thirty days between issuing a director's report and scheduling a hearing.

     350-60-060(5) (proposed new language) was not adopted.

     350-60-040(5) and 350-70-040(6) were changed to specify that a document that is e-mailed prior to midnight on the due date is considered filed on that date.

     350-60-205(1) and 350-70-225(1) and were changed to replace "prior to the start of the oral argument" with "prior to an oral decision."

     350-60-220 and 350-70-230 were not amended.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 55, Repealed 3.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 4, Amended 55, Repealed 3.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: March 8, 2011.

Nancy A. Andring

Rules Coordinator

350-30-015. Civil Penalty.

     (1) Any person who willfully violates any of the following may incur a civil penalty:

     (a) P.L. 99-663;

     (b) the management plan;

     (c) a land use ordinance;

     (d) an implementation measure; or

     (e) any order issued by the Commission or the Director.

     (2) The Commission may not assess a civil penalty under section 15 (a)(3) of P.L. 99-663 unless it provides notice and an opportunity for a public hearing to the person alleged [by the Commission] that the Commission alleges to have violated one of the measures listed in subsection (1) of this section.

     (3) Each day of continuing violation is a separate and distinct violation.

AMENDATORY SECTION

350-30-020. Investigation.

     (1) The Director shall investigate alleged violations of the measures listed in subsection 1 of 350-30-015 of this Division.

     (2) The Director may inspect the subject property if necessary to conduct an investigation under subsection (1) of this section.

     (3) If the Director determines a violation has occurred, he shall follow the procedures in 350-30-030, unless it is de minimis. If it is de minimis, he shall follow the procedures in 350-30-025.

AMENDATORY SECTION

350-30-025. De Minimis Violation.

     (1) If the Director determines believes a violation has occurred but it is of a de minimis nature, readily correctable, not repeated and with cooperative parties, a summary describing the matter shall be sent to the Commission. The summary shall analyze the relevant factors and present a final resolution. the Director should work with the landowner to resolve the matter through a new development review application, modification or removal of a building or structure, or other appropriate means. The Director shall periodically report to the Commission about resolutions to de minimis violations.

     (2) If any three members of the Commission want further review of the violation, they shall request it in writing within 14 days of issuance of the summary. The Director shall follow the procedures in 350-30-030 to set the matter for hearing before the Commission.

     (3) If no further review is requested, the Director shall finalize disposition of the violation.

AMENDATORY SECTION

350-30-030. Notice of Alleged Violation.

     (1) If the violation is not de minimis, Tthe Director shall serve written notice of violation on the alleged violator by personal service or by registered or certified mail. The notice shall include:

     (a) a plain statement describing the alleged violation;

     (b) the provision of P.L. 99-663, the management plan, the land use ordinance, the implementation measure or the order alleged to have been violated;

     (c) the legal and common description of the subject property;

     (d) the proposed disposition of the matter through either 350-30-050 through 350-30-060 or 350-30-070 including the recommended penalty to be imposed (if any) and the criteria from 350-30-090 upon which the penalty is based;

     (e) a statement that the alleged violator shall file an answer within 14 days after receipt of the notice of violation;

     (f) a copy of 350-30-040 which prescribes how to file an answer; and

     (g) a statement that if resolution is not reached through 350-30-050 through 350-30-060 the Commission will consider the alleged violation at a contested case hearing which may result in the entry of a final order imposing a civil penalty based upon a prima facie case made on the record, whether or not the alleged violator participates.

     (2) Service shall be deemed complete three days after written notice is mailed to:

     (a) the alleged violator; or

     (b) any person designated by law as competent to receive service of a summons or notice for the alleged violator.

     (3) Notice sent by registered or certified mail to a person at the last known address of the person is presumed to have reached the person within three days after mailing.

AMENDATORY SECTION

350-30-060. Hearing on Proposed Resolution Through Agreement.

     (1) The hearing shall be conducted using the following procedure:

     (a) Counsel for tThe Director shall provide a brief summary of the nature of the case, the proposed resolution and the key legal issues.

     (b) The Director shall provide any other information required along with his recommendation.

     (c) The alleged violator or the alleged violator's representative shall be given a reasonable opportunity to be present and have the opportunity to address the Commission.

     (d) The Commission may request further information from the Director or the alleged violator.

     (e) The Commission shall decide whether to accept, reject or modify the proposed resolution.

     (f) If rejected, the matter shall be reset for a contested case hearing under 350-30-070.

AMENDATORY SECTION

350-30-080. Order.

     (1) The Commission shall issue a final order. The order shall be served by personal delivery or certified or registered mail. If served by mail, the order shall be deemed received three days after mailing.

     (2) The order shall specify:

     (a) the resolution of the violation (including any consent decree);

     (b) whether a penalty is imposed and the amount of such penalty; and

     (c) any other conditions or requirements.

     (3) The order shall be final for purposes of judicial review under the applicable laws of Oregon and Washington.

AMENDATORY SECTION

350-40-010. Definitions.

     The definitions in Chapter 350, Division 20, Section 002 shall apply to this division. Reserved

AMENDATORY SECTION

350-40-020. Authority.

     (1) Consideration of requests to revise urban area boundaries is a discretionary action authorized by section 4(f) of the Act. The Act does not entitle a county, or any person or entity, to have the Commission review a request to revise any urban area boundary, and does not contain time requirements for consideration of a request. The Commission may make "minor revisions" to the boundaries of an Urban Area [Scenic Area Act, Section 4(f)].

     (2) Three procedural requirements are included in Section 4 (f)(1) of the Scenic Area Act:

     (a) Requests to revise an Urban Area boundary are submitted to the Commission by a county government;

     (b) The Commission must consult the Secretary of Agriculture before revising an Urban Area boundary; and

     (c) Two-thirds of the Commission members, including a majority of the members appointed from each state, must approve a revision of an Urban Area boundary. In the event of recusal, the doctrine of necessity shall apply.

     (3) Section 4 (f)(2) of the Scenic Area Act allows the Commission to revise the boundaries of an Urban Area only if the following criteria are satisfied:

     (a) A demonstrable need exists to accommodate long-range urban population growth requirements or economic needs consistent with the Management Plan;

     (b) Revision of Urban Area boundaries is consistent with the standards established in Section 6 and the purposes of the Scenic Area Act;

     (c) Revision of Urban Area boundaries will result in maximum efficiency of land uses within and on the fringe of existing Urban Areas; and

     (d) Revision of Urban Area boundaries will not result in the significant reduction of agricultural lands, forest lands, or open spaces.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-40-050. Submission and Acceptance of Application.

     (1) A county government shall submit an application to revise the boundary of an Urban Area to the Commission office. Fifteen copies of each application are required after the Executive Director determines the application is complete. Only two copies of the large scale maps are required.

     (2) Within ten (10) working days of receiving an application, tThe Director shall review the application for completeness and adequacy and notify the applicant in writing of any deficiencies.

     (3) The Executive Director shall not accept an application as complete until all omissions and deficiencies noted by the Executive Director are corrected.

NEW SECTION

350-40-055. Work Plan.

     The Commission shall adopt a work plan for each application to revise an urban area boundary. The work plan should contain an estimate of the time and steps needed to review the application, which may vary among applications depending on Commission staffing, budget and resources, and other agency work. At a minimum, the work plan shall include the steps and time periods in sections 060 through 090 in this division. The start date, steps, and time periods shall be set considering commission staffing level, budget and resources, other agency work, and adequate time for public review. The work plan is only an estimate; the Executive Director may require information or procedure not listed in the work plan; skip procedures and information requirements listed in the workplan; or lengthen or shorten time to complete steps in the workplan without permission from the Commission.

     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-40-060. Notice of Application.

     (1) Once the application is deemed complete, tThe Executive Director shall send public electronic or paper notice of the completed application to the U.S. Forest Service-National Scenic Area Office, States of Oregon and Washington, all four Indian tribal governments, the six Gorge county planning offices, appropriate city planning offices, and interested parties who have requested notice.

     (2) The Executive Director shall publish notice of the application in local Gorge newspapers serving the National Scenic Area as well as a major newspaper in Portland and a major newspaper in Vancouver.

     (3) The Executive Director shall make copies of tThe complete application shall be available for inspection at the Commission office during normal office hours.

AMENDATORY SECTION

350-40-065. Public Comment.

     (1) Interested persons shall have twenty (20) working no less than 30 days from the date the notice is posted sent to submit written comments to the Executive Director. Written comments should address whether the proposed amendment is consistent with the purposes and standards of the Scenic Area Act, the criteria in Section 6(h) of the Scenic Area Act and this rule.

AMENDATORY SECTION

350-40-070. Report of the Executive Director.

     Within thirty (30) working days following the end of the public comment period, tThe Executive Director will shall prepare a report analyzing the proposed Urban Area boundary revision, and which may include recommendations. Upon application of the Executive Director, the Commission may extend the time for submission of the report. The report will analyze the proposed Urban Area boundary revision based on the criteria of the Scenic Area Act and this rule.

AMENDATORY SECTION

350-40-080. Hearing.

     (1) The Commission will conduct a hearing on every application accepted as complete by the Director.

     (2) The Commission shall provide 30 20 days notice of the hearing to interested parties and members of the public.

     (3) The hearing shall take place as follows, noting the Chair may provide specific direction for the conduct of the hearing related to the time allowed for presentations and similar procedural issues:

     (a) The applicant is required to proceed first in the hearing and shall may present the basis for the urban area boundary revision.

     (b) Federal, state, county, tribal and other government officials may participate through submission of oral or written comments.

     (c) Members of tThe public may participate through submission of oral or written comments.

     (d) After those who participate in the hearing on behalf of the government or the public are finished, the applicant shall have the opportunity to respond to the comments presented.

     (e) After all presentations are complete, the Chair shall invite the Commission to shall deliberate on the proposed urban area boundary revisions.

     (f) If the Commission makes no changes to the boundary revision proposal, the Commission may proceed to vote on the proposal.

     (g) If the only changes to the boundary revision proposal are for the purposes of clarification, the Commission may proceed to vote on whether to adopt the boundary revision after providing an opportunity for public comment during the hearing on any change.

     (h) If substantive changes, i.e. those not covered by subparagraph (g) immediately above, to the boundary revision are approved by the Commission during the hearing, the Commission shall:

     (i) provide an opportunity for additional public comment during the hearing on the proposed changes, and then proceed to vote on whether to approve the boundary revision; or

     (ii) continue the hearing to a new date to allow for adequate public notice of the content of the modifications and for further consideration of the issues. When the hearing is resumed, the Commission shall provide a reasonable opportunity for the applicant and members of the pubic to respond to the proposed modifications under review, and then proceed to vote on whether to approve the boundary revision.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-50-020. Authority.

     (1) Consideration of amendments to the Management Plan is a discretionary action authorized by section 6(h) of the Act. The Act does not entitle any person or entity to have the Commission review an application to amend the Management Plan, and does not contain time requirements for consideration of a request. The Commission may adopt an amendment to the Management Plan only if it is consistent with the purposes and standards of the Scenic Area Act, the provisions in section 6(h) of the Act, and this rule.

     (2) The Act allows only the Commission to adopt a plan amendment:

     (a) If the Commission determines at any time that conditions within the Scenic Area have significantly changed; and

     (b) If the Commission approves the plan amendment by a majority vote of the members appointed, including approval by at least three members from each state. In the event of recusal, the doctrine of necessity shall apply.

AMENDATORY SECTION

350-50-035. Matters Not Constituting a Plan Amendment.

     (1) The Executive Director and Area Manager may jointly correct any typographical, grammatical, cross-reference, mapping discrepancies (such as land use designation boundaries that differ from property lines when the intent to follow property lines is clear) creating by using maps with different and coarse scales, or other similar error contained in the Management Plan that does not change the substantive provisions of the Management Plan.

     (2) The Executive Director and Area Manager shall report such changes to the Commission at a regularly noticed meeting. The meeting agenda shall include notice of a report under this section. For such changes, the Commission shall not be required to amend the Management Plan as provided in this division of the Commission's rules, nor seek concurrence by the Secretary of Agriculture.

     (3) A correction shall be considered a final action for the purpose of judicial review at the time the Executive Director and Area Manager report the correction to the Commission.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-50-040. Origin of Applications.

     (1) Any person may request that the Commission initiate a legislative amendment to the Management Plan.

     (2) Any person may submit an application apply for a quasi-judicial amendment to the Management Plan. All owners of parcels to which the proposal applies shall give written consent to the application.

     (3) For the purpose of this division of the Commission Rules, a quasi-judicial amendment shall be one that proposes to change the land use designation, recreation intensity class or landscape setting on one or any clearly identifiable set of parcels that share a similar set of facts, and the change does not establish new policies, or one that proposes to change policy that would apply to one or a small number of clearly identifiable parcels that share a similar set of facts. All other amendments shall be considered a legislative amendment.

     (4) The Executive Director shall determine whether the proposal is for a legislative or a quasi-judicial amendment. The Executive Director may make this determination prior to or at the pre-application conference.

AMENDATORY SECTION

350-50-045. Pre-Application Conference Required for Quasi-Judicial Plan Amendment.

     (1) Prior to submitting any application for an a quasi-judicial plan amendment to the Management Plan, an applicant shall attend a pre-application conference with the Executive Director.

     (2) The applicant shall submit a statement of the proposed change to the land use designation, landscape setting, or recreation intensity class or policy change and the purpose for which the changes are sought. Proposals for quasi-judicial amendments shall include a list of all parcels to which the proposal applies and the names and addresses of the owners of the parcels. The Executive Director may request the applicant submit additional information about the proposal prior to scheduling a pre-application conference.

     (3) The Executive Director shall hold schedule a pre-application conference within 30 days after an applicant requests a pre-application conference after the applicant submits all additional information that the Executive Director requests. The Executive Director shall hold the pre-application conference within a reasonable period of time after receipt of the additional information. The Executive Director shall notify the following persons of the pre-application conference:

     (a) The applicant;

     (b) For quasi-judicial amendments, the owners of all parcels to which the proposal applies;

     (c) Representatives of the USDA Forest Service, the county or counties where the subject parcel or parcels are located, the four Indian Tribes with treaty rights in the National Scenic Area, and appropriate state agencies; and,

     (d) Any other person the Executive Director believes may have an interest in the proposal or requests notice of the pre-application conference; and,

     (e) For legislative amendments, the person who submitted the original request.

     (4) The Commission may charge a fee for holding a pre-application conference. The Commission shall set the fee. The Commission shall hold a public hearing before establishing a fee for pre-application conferences.

     (5) The purpose of the pre-application conference is to assist the applicant to complete the Plan Amendment process successfully and expeditiously, determine the nature of the proposal as quasi-judicial or legislative, identify possible practicable alternatives, identify issues that concern the Commission and other agencies and interested persons, determine what information will would be necessary for the Executive Director to review the application, give an estimated schedule for considering the application, and identify possible conditions of approval.

     (6) Within 14 days after a pre-application conference, tThe Executive Director shall issue a pre-application conference report, which shall summarize the discussion at the conference and shall contain a preliminary list of information necessary to review the application. The list of necessary information shall be as comprehensive as reasonably possible, but shall not be exclusive.

     (7) The Executive Director may require an applicant to attend a new pre-application conference if the application submitted is materially different than from the proposal discussed at the pre-application conference, or conditions in the Scenic Area have materially changed.

AMENDATORY SECTION

350-50-060. Processing of Applications and Requests.

     (1) Applications for quasi-judicial amendments shall be reviewed upon receipt and in the order in which they are received, except that the Commission may, as part of its work planning, set a limit on the number of quasi-judicial applications it will process during the biennium and may set its limit at zero. Applications shall be reviewed pursuant to sections 070 through 120 of this division.

     (2) The Executive Director shall maintain track requests for legislative amendments. The Commission shall review requested legislative amendments at least once each biennium and determine which, if any, to handle as an application to amend the Management Plan. In determining which legislative amendments to handle, the Commission may consider such factors as: whether the issue has been the subject of appeals, whether the issue has been an implementation problem, whether the issue is a priority of federal, state, local, or tribal governments, and availability of data and resources necessary to analyze the issue. The Commission shall solicit public comment during its work planning concerning legislative amendments to initiate. The decision to initiate a legislative amendment is at the sole discretion of the Commission.

     (3) For legislative amendments, the Executive Director shall hold a pre-application conference as provided in 350-50-045. Following the pre-application conference, tThe Executive Director shall process a legislative amendment pursuant to sections 080 through 120 of this division.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-50-070. Acceptance of Application for Quasi-Judicial Plan Amendment Application.

     (1) Within 14 days of receiving an application, tThe Executive Director shall review the application for completeness and notify the applicant in writing of any deficiencies, and any additional information that is required as provided in 350-50-050 (1)(f).

     (2) The Executive Director shall not accept an application as complete until the applicant corrects all deficiencies and submits all additional information noted by the Executive Director.

     (3) The applicant shall submit 15 copies of the application after the Executive Director determines the application is complete.

AMENDATORY SECTION

350-50-080. Notice of Application for Quasi-Judicial Plan Amendment or Proposal for Legislative Amendment.

     (1) The Executive Director shall send public notice of the a completed application for a quasi-judicial plan amendment or a proposal for a legislative amendment to the U.S. Forest Service - National Scenic Area Office,; appropriate state agencies,; all four Indian tribal governments,; the six Gorge county planning offices,; interested parties who have requested notice,; and for quasi-judicial applications, all landowners within 200 feet of the boundaries of all parcels to which the proposal applies. The notice shall specify the due date for comment.

     (2) The Executive Director shall publish notice of a quasi-judicial plan amendment application in a newspaper serving the community where the parcels to which the proposal would apply are located. The Executive Director shall publish notice of a legislative plan amendment proposal in one or more local newspapers serving the geographic area(s) that the amendment would affect.

     (3) For all plan amendments, Tthe Executive Director shall give electronic publish notice of a legislative plan amendment application in local Gorge newspapers serving the National Scenic Area as well as a major newspaper in Portland and a major newspaper in Vancouver. notice to all persons that receive electronic notice of commission meetings.

     (4) The Executive Director shall make copies of the complete application or proposal shall be available for inspection at the Commission office during normal office hours.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Columbia River Gorge Commission and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-50-085. Public Comment.

     (1) Interested persons shall have 30 days from the date the notice is posted to may submit written comments to the Executive Director within the time specified in the notice. Written comments should address whether the proposed amendment is consistent with the purposes and standards of the Scenic Area Act, the criteria in Section 6(h) of the Scenic Area Act and this rule.

     (2) The Commission shall provide copies of the written comments submitted during the comment period to the applicant prior to or with the staff report to enable the applicant to address the comments at the hearing.

AMENDATORY SECTION

350-50-090. Report of the Executive Director.

     (1) Unless otherwise specified in the pre-application conference, Within 60 days following the end of the public comment period, tThe Executive Director shall prepare a staff report, which may include recommendations. The report will analyze the proposed amendment based on the criteria of the Scenic Area Act and Rule 350-50-030.

     (2) For legislative amendments, the Executive Director shall include recommended plan amendment language in the staff report.

AMENDATORY SECTION

350-50-100. Hearings.

     (1) The Commission shall conduct a hearing on every the proposed plan amendment application after the Executive Director issues the report and there has been adequate time for public review of the report.

     (2) The Commission shall provide 20 days notice of the hearing to all persons who received the notice of a quasi-judicial plan amendment application, and any other person who submitted comment on the application. The notice of the application proposed plan amendment may include the notice of hearing.

     (3) The hearing shall take place as follows, noting the Chair may provide specific direction for the conduct of the hearing related to the time allowed for presentations and similar procedural issues.

     (a) The Executive Director shall present the staff report. The Commission may ask questions concerning the staff report.

     (b) The applicant for a quasi-judicial plan amendment shall present the proposed plan amendment.

     (c) Interested persons may present oral or written comments.

     (d) Following testimony from interested persons, the applicant shall have the opportunity to respond to the comments presented.

     (e) After all presentations are complete, the Chair shall close the public hearing, and the Commission shall deliberate and vote on the proposed plan amendment.

     (f) For quasi-judicial plan amendment applications, tThe Commission may proceed to vote on the application as submitted or attach conditions of approval necessary to ensure the proposal proposed plan amendment complies with the criteria for approval. The Commission shall allow the applicant to comment on proposed conditions of approval prior to voting on the application. If the Commission proposes a condition different than recommended by the applicant or by the staff, or discussed during the hearing, the Commission shall allow the applicant to comment on the proposed condition of approval prior to voting on the application. The Commission shall deny the proposed plan amendment if any of the criteria in 350-50-030 are not satisfied by the application as submitted and cannot be satisfied through imposing reasonable conditions of approval.

     (g) For legislative amendments, the Commission may modify the recommended language in any manner.

     (i) If the Commission makes clarifying changes to the recommended language, then it may proceed to vote on whether to adopt the recommended language, as clarified, after providing an opportunity for public comment during the hearing.

     (ii) If the Commission makes substantive changes, i.e. those not covered by subparagraph (i) immediately above, to the recommended language, the Commission shall:

     (A) provide an opportunity for additional public comment during the hearing on the new language, and then proceed to vote on whether to adopt the amendment; or

     (B) continue the hearing to a new date to allow for adequate public notice of the content of the language and for further consideration of the issues. When the hearing is resumed, the Commission shall provide a reasonable opportunity for the applicant and members of the public to respond to the proposed language, and then proceed to vote on whether to adopt the amendment.

     (hg) The Commission shall determine if the amendment as approved is mandatory for counties to adopt into their land use ordinances. Unless otherwise specified by the Commission, amendments to county land use ordinances shall follow the procedures established in Sections 7 and 8 of the Scenic Area Act (16 U.S.C. §§ 544e and 544f).

AMENDATORY SECTION

350-60-040. Definitions.

     In these rules, unless the context or subject matter requires otherwise:

     (1) "Applicant" means the person who requested that the governing body take an action which resulted in a land use decision.

     (2) "Commission" means the Columbia River Gorge Commission.

     (3) "Counties" means Multnomah, Hood River and Wasco counties, Oregon; and Clark, Skamania and Klickitat counties, Washington.

     (4) "Days" means calendar days.

     (5) "File" means to deliver to Commission offices by personal delivery or by, U.S. Postal mail, or email. Unless otherwise specified, a document shall be considered filed on the date that it is personally delivered, or the date that it is mailed or emailed. A document that is emailed prior to midnight on the due date shall be considered filed on that due date.

     (a) A motion filed with the consent of all parties may be filed by fax. When a motion is filed by fax, the original shall be mailed or delivered in person to the Commission offices on the same day or on the next business day. A motion filed by fax shall be considered filed on the date it is faxed if the fax is received at Commission office by 5:00 p.m.

     (b) Any document filed with the Commission shall include a certification that the document was served on all parties on the same or earlier date and in the same manner that the document was filed.

     (6) "Final decision": A decision is final when it is reduced to writing and bears the necessary signatures of the governing body decisionmaker(s).

     (7) "Governing body" means a county governing body.

     (8) "Land use decision" means a final decision by the governing body of a county in the National Scenic Area based on the National Scenic Act.

     (9) "Notice" means the Notice of Appeal and refers to the document that must be filed with the Commission in order to begin an appeal.

     (10) "Party" means the appellant, the governing body, the applicant (if different than the appellant), and or any intervenor.

     (11) "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the Commission. A person shall include the Executive Director of the Gorge Commission in his or her official capacity.

     (12) "Serve" or "Service" means to send with the United States Postal Service by first class mail or to deliver in person, or to send by email, a copy of the original to all parties, including intervenors and persons who have a pending motion to intervene before the Commission.

     (a) Only motions that are filed by fax may be served by fax. If a motion is served by fax, then it shall also be served by mailing or delivering a copy of the original to all parties on the same or next day.

     (b) All documents served on the other parties shall include a certification that the document was served on the same or earlier date that the document was filed. Service shall occur on all parties in the same manner, but need not occur in the manner which the original document was filed (Exhibit 4).

AMENDATORY SECTION

350-60-042. Delegation of Authority to the Chair of the Commission

     (1) Where these rules refer to the Chair of the Commission, the Commission has delegated authority to the Chair or presiding officer designated by the Chair to act on those matters for the Commission, including but not limited to, procedural orders on behalf of the Commission relating to case setting, requests for intervention, preliminary motions, motions to dismiss, and other procedural matters. The Chair of the Commission may also act on other matters specified for Commission action when the context indicates action by the Chair of the Commission or when action by the full Commission would be impracticable.

     (2) The Chair of the Commission shall decide matters without oral argument, unless the Chair desires an oral hearing. The decision of the Chair of the Commission or presiding officer pursuant to this authority shall be final and not reviewable by the full Commission. The Chair of the Commission may also choose, at his or her sole discretion, to bring a matter to the full Commission for decision.

AMENDATORY SECTION

350-60-045. Time

     (1) Computation: In computing any period of time prescribed or allowed by these rules, the day of the act from which the designated time period begins to run shall not be included and the last day of the time period shall be included.

     (2) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period of time after service of a notice or other paper document, and the service of the notice or other paper document is by mail, three (3) days shall be added to the prescribed time period. This does not apply to documents mailed when filing and service is accomplished by fax email.

     (3) When a deadline for accomplishing some act under these rules falls on a weekend or legal holiday, the deadline shall be the next business day, and all following deadlines shall be calculated from that deadline. A legal holiday shall be any day in which the United States Postal Service does not deliver mail, or when the Gorge Commission is closed for business.

NEW SECTION

350-60-047. Electronic Filing and Service

     (1) The Commission allows filing of all documents by electronic mail (email) to the Commission's Office. All documents shall be emailed to crgc@gorgecommission.org, and shall have a subject heading that clearly identifies the email as filing a document and that clearly identifies the appeal by caption and/or appeal number. The Commission allows email filing even if a party opts out of email service. A party need not file a document by mail if that party has already filed the document by email.

     (2) All documents may be served by email to parties and persons that do not opt out of email service (see rules below for Notice of Appeal and Notice of Appearance). Parties filing a petition for review are encouraged to communicate with parties and persons who are entitled to receive a copy of the Notice of Appeal about electronic service of the Notice of Appeal.

     (3) The preferred format for filed and served documents shall be a searchable portable document format (.pdf). Color originals available electronically, or easily able to be scanned in color shall be filed and served in color. Requirements for color covers or fastening of documents shall not apply to documents filed or served by email.

     (4) The Commission understands that parties' and persons' computers and internet service may display times that vary by several minutes, and have different technological capabilities. Parties and persons filing and serving documents by email should communicate with each other to ensure that the documents can be received and read. The Commission will apply the rules in this chapter in the interest of promoting full participation in an appeal, resolving the appeal in an expeditious manner, and to promote justice in disputes concerning email filing and service such as whether a document was timely filed; timely served; should have been filed or served by email; whether and when the document was received; and whether the document was sent in a readable format. In resolving disputes over electronic service, the Commission will consider whether the parties made good faith efforts to communicate about electronic mail service and whether parties attempted to resolve the dispute without involving the Commission.

     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-60-050. Notice of Appeal.

     (1) Filing: Except as provided in 350-60-240 below, an appellant shall file a Notice of Appeal at the Commission office on or before the 30th day after the date the decision sought to be appealed becomes final. Except as provided in 350-60-240 below, a Notice filed thereafter shall not be deemed timely filed and the appeal shall be dismissed.

     (2) Service of Notice of Appeal: The Notice of Appeal shall be served on the governing body, the governing body's legal counsel, the applicant, the applicant's legal counsel, and all persons identified in the Notice as required by subsection (3)(h) of this rule on or before the date the Notice of Appeal is filed.

     (3) Contents of Notice of Appeal: The Notice of Appeal shall be substantially in the form set forth in Exhibit 1 and shall contain:

     (a) A caption which sets forth the name(s) of the person(s) filing the Notice, identifying the person(s) as appellant(s),; and the name of the governing body, identifying the governing body as respondent; and if the appellant is not the applicant, the name of the applicant, identifying the applicant as respondent;

     (b) Adjacent to the caption the heading "Notice of Appeal";

     (c) The full title of the decision to be reviewed as it appears on the final decision;

     (d) The date the decision to be reviewed became final;

     (e) A concise description of the decision to be reviewed:

     (f) A brief "ADR Statement" stating whether the appellant is willing to attempt to resolve the case through alternative dispute resolution ("ADR"), including but not limited to mediation. This statement shall not be used to argue the merits of the appeal.

     (g) A statement whether the appellant is willing to consider a shortened record in accordance with 350-60-060(f).

     (h) The name, address, email address, and telephone number of each of the following:

     (A) The Appellant. If the appellant is not represented by an attorney, the appellant's name, address, email address, and telephone number shall be included. If an attorney represents the appellant, the attorney's name, address, email address, and telephone number shall be substituted for that of the appellant.

     (B) The governing body and the governing body's legal counsel;

     (C) The applicant, if any (and if other than the appellant). If an applicant was represented by an attorney before the governing body, the applicant's address and telephone number contact information may be omitted and the name, address and telephone number and contact information of the applicant's attorney shall be included;

     (D) Any other person to whom written notice of the land use decision was mailed as shown on the governing body's records. The telephone number and email address may be omitted for any such person.

     (i) A statement advising all persons other than the governing body and applicant, that in order to participate in the review proceeding a person must file at the Commission office and serve a motion to intervene pursuant to 350-60-160.

     (j) A statement advising all persons other than the governing body and applicant, that in order to present oral argument at the hearing before the Commission, a person must intervene and file a brief pursuant to 350-60-120(1).

     (k) A statement informing all parties and persons whether the party filing the Notice of Appeal opts out of email service, and a statement informing parties and persons that service of documents may be by email unless a party or person expressly opts out of receiving documents by email.

     (lk) Proof of service upon all persons required to be named in the Notice. See Exhibit 1.

     (4) Filing Fee and Deposit for Costs: The Columbia River Gorge Commission may charge a filing fee and deposit. Filing fees and deposits, if any, shall be set by the Gorge Commission's Executive Director and shall not exceed the average cost to the Commission of handling appeals under this rule.

AMENDATORY SECTION

350-60-055. Respondent's' ADR Statement Notice of Appearance.

     Within 10 14 days after filing of a Notice of Appeal, the governing body a respondent shall file at the Commission office and serve a "Respondent's ADR Statement Notice of Appearance" stating whether the respondent is willing to attempt to resolve the case through alternative dispute resolution means, and whether the respondent opts out of email service of all documents. Note that the respondent must affirmatively opt out of email service. This statement Notice of Appearance shall not be used to argue merits of the appeal.

AMENDATORY SECTION

350-60-060. Record.

     (1) Contents of Record: The record on appeal from a governing body shall include the following:

     (a) The final decision including findings of fact and conclusions of law;

     (b) All testimony and all exhibits, maps, documents or other written materials included as part of the record during the course of the governing body's proceeding.

     (c) Photos, maps, and exhibits that were presented to the governing body in color shall be provided to the Commission in color in the original or certified copy of the record;

     (d) Minutes of the meetings conducted by the governing body as required by law. A verbatim transcript of audiotape recordings shall not be required, but if a transcript has been prepared, it shall be included.

     (e) The governing body may retain the audiotape recording, any large maps, or exhibits and documents which are difficult to duplicate, until the date of oral argument. The governing body shall make these items reasonably available for inspection and duplication by the parties during the pendency of the appeal, and shall specify in its filing of the record the available times and procedure for reviewing for these items.

     (f) The Gorge Commission encourages parties to stipulate to a shortened record.

     (A) A shortened record may eliminate duplicates of documents, letters that do not include substantive information, documents related to issues that are not being appealed, or other documents that the parties do not believe are necessary for the Gorge Commission to decide the issues raised in the appeal.

     (B) Notwithstanding subsection (2)(A) above, a shortened record shall include the documents referred to in subsections (1)(a) and (d) above, and any document submitted in a shortened record shall comply with subsection (1)(c) and (e) above.

     (C) A shortened record may be submitted only as agreed upon by all parties. The record shall contain any document that one or more parties desires to include in the record.

     (D) Any party that desires to refer to a document that was eliminated by agreement of the parties in a shortened record may at any time file at the Commission office and serve a motion to supplement the record with that document, and shall include the document as part of its motion. A motion to supplement the record under this section shall comply with 350-60-130.

     (E) The shortened record shall be considered the complete record before the Gorge Commission for the purpose of any judicial review of the Gorge Commission's decision.

     (2) Filing of Record: The governing body shall wWithin 30 days after service of the Notice of Appeal is filed, on the governing body, shall file at the Commission office the original or a certified paper copy or an electronic copy, and two copies of the record of the proceeding under review. Approximately 30 days prior to the date of oral argument, the Commission will contact the governing body and request paper copies of the record, which the governing body shall provide to the Commission office no later than 14 days prior to the date of oral argument. The number of paper copies of the record will depend on the number of members of the Gorge Commission that request a paper copy.

     (3) Service of Record: Contemporaneously with filing the record at the Commission office, the governing body shall serve a copy of the record, exclusive of audiotape recordings, large maps and other exhibits and documents which that are difficult to duplicate, on the appellant, the applicant, and all other parties, including intervenors. If intervention is granted after the record is filed and served, then the governing body shall serve a copy of record as soon as possible after intervention is granted. The governing body may provide the record to parties in an electronic form.

     (4) Specifications of Record:

     (a) The record shall:

     (A) Include a cover bearing the title of the case as it appears in the Notice, and the Commission's numerical designation for the case, and shall indicate the numerical designation given the land use decision by the governing body;

     (B) Begin with a table of contents, listing each item contained therein, and the page of the record where the item begins (see Exhibit 2), and listing each audiotape recording, large map or other exhibit or document retained by the governing body;

     (C) Be securely fastened;

     (D) Have pages numbered consecutively, with the page number at the bottom right-hand corner of each page;

     (E) Be arranged in inverse chronological order, with the most recent item on top.

     (F) Indicate whether it is a shortened record. The governing body is not required to indicate documents that were excluded by stipulation of all parties to produce the shortened record.

     (b) A record which does not conform to the preceding requirements shall not be accepted by the Commission.

AMENDATORY SECTION

350-60-070. Objections to the Record.

     (1) Before filing an objection to the record, a party shall attempt to resolve the matter with the governing body.

     (2) An objection to the record shall be filed at the Commission office and served within 10 days following service of the record on the party filing the objection. The party filing the objection to the record shall certify that the objection is made in good faith, that the objection is material, that the objection was not made for the purpose of delay, and that he or she has contacted the governing body and attempted to resolve the objection. Objections may be made on the following grounds:

     (a) The record does not include all materials included as part of the record during the proceedings before the governing body. The omitted item(s) shall be specified, as well as the basis for the claim that the item(s) are part of the record.

     (b) The record contains material not included as part of the record during the proceedings before the governing body. The item(s) not included as part of the record during the proceedings before the governing body shall be specified, as well as the basis for the claim that the item(s) are not part of the record.

     (c) The minutes do not accurately reflect the proceedings, or the transcripts of the meetings or hearings are incomplete.

     (3) An objection on grounds that the minutes or transcripts are incomplete or inaccurate shall demonstrate with particularity how the minutes or transcripts are defective and shall explain with particularity why the defect is material. Upon such demonstration, the Chair of the Commission shall require the governing body to produce additional evidence to prove the accuracy of the contested minutes or transcripts. If the evidence regarding contested minutes is in an audiotape recording, a transcript of the relevant portion shall be submitted.

     (4) The Chair of the Commission may conduct a telephone conference with the parties to consider any objections to the record.

     (5) If an objection to the record is filed, the time limits for all further procedures under these rules shall be suspended. When the objection is resolved, the Chair of the Commission shall issue a letter or order declaring the record settled and setting forth the schedule for subsequent events. Unless otherwise provided by the Chair of the Commission, the date of the Chair's letter or order shall be deemed the date that the record is settled for purposes of computing subsequent time limits. A letter or an order of the Chair settling the record is not appealable to the full Commission.

AMENDATORY SECTION

350-60-080. Appellant's Brief.

     (1) Filing and Service of Brief: The Appellant's Brief shall be filed at the Commission office and served no later than 30 days after the record is filed, or settled if a party files an objection to the record. Failure to file an Appellant's Brief within the time required by this section shall result in dismissal of the appeal.

     (2) Specifications of Brief: The Appellant's Brief shall

     (a) Begin with a table of contents;

     (b) Not exceed 50 pages, exclusive of appendices, unless permission for a longer brief is given by the Chair of the Commission. If a brief exceeding the 50 page limit is filed without permission, the Chair of the Commission shall notify the author, and order a time period in which to submit a revised brief satisfying the 50 pages limit shall be filed and served within three (3) days of notification.

     (c) Have a blue cover page, stating the full title of the proceeding, and the names, addresses and telephone numbers of all parties unrepresented by attorney. If a party is represented by an attorney, the name, address and telephone number of the attorney shall be substituted for the party. An intervenor shall be designated as either appellant or respondent.

     (d) If there is more than one appellant, the cover page shall specify the appellant(s) filing the brief.

     (e) Be typewritten, in 1214-point pica type in a regularly used font such as Times New Roman, Helvetica, or Calibri, and double spaced;

     (f) Be signed on the last page by the author. An electronic brief may contain an electronic signature or other generally accepted substitute.

     (3) Contents of Brief: The Appellant's Brief shall

     (a) State the facts that establish appellant's standing;

     (b) Present a clear and concise statement of the case, in the following order, with separate section headings:

     (A) The nature of the land use decision and the relief sought by the appellant;

     (B) A summary of the arguments appearing under the assignments of error in the body of the brief;

     (C) A summary of the material facts. The summary shall be in narrative form with citations to the pages of the record where the facts alleged can be found.

     (c) State why the challenged decision is a land use decision subject to the Commission's jurisdiction;

     (d) Set forth each assignment of error under a separate heading. Where several assignments of error present essentially the same legal questions, the argument in support of those assignments of error shall be combined;

     (e) Contain a copy of the challenged decision, including any adopted findings of fact and conclusions of law;

     (f) Contain a copy of any management plan provisions, comprehensive plan provision, ordinance or other provision of local law cited in the brief, unless the provision is quoted verbatim in the brief.

     (4) Copies of example Appellant's briefs are available at the Commission office for parties to review for form.

AMENDATORY SECTION

350-60-100. Respondent's Brief.

     (1) Filing and Service of Brief: The Respondents shall file at the Commission office and serve a Respondent's brief no later than 20 days after the date the Appellant's Brief is filed.

     (2) Specifications of Brief: The Respondent's brief shall conform to the specifications of the Appellant's Brief, except that the brief shall have a red cover. If there is more than one respondent, the cover page shall specify which respondent is filing the brief.

     (3) Contents of Brief:

     (a) The Respondent's brief shall follow the form prescribed for the Appellant's Brief. The respondent shall specifically accept the appellant's statement of the case or shall cite any alleged omissions or inaccuracies therein, and may state additional relevant facts or other matters. The statement shall be in narrative form with citations to the pages of the record where support for the facts alleged can be found.

     (b) The Respondent shall accept or challenge the appellant's statement of the Commission's jurisdiction and the appellant's statement of standing. The basis for any challenge shall be stated. If the respondent contends that the facts alleged by the appellant in support of standing are not true, the respondent shall specify which allegations are contested.

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION

350-60-110. Reply Brief.

     A reply brief may shall not be filed.

[AMENDATORY SECTION]

350-60-120. Oral Argument.

     (1) The hearing before the Commission shall be on the record submitted by the county, as long as the county has based its decision upon a record made at an adjudicative hearing open to participation by persons adversely affected or aggrieved. Only parties who have submitted briefs shall be allowed to present oral argument to the Commission.

     (2) If the county did not base its decision upon a record made in an adjudicated hearing open to participation by persons adversely affected or aggrieved, then anyone adversely affected or aggrieved may participate in a hearing before the Commission.

     (3) If a party waives the right to present oral argument, the Commission shall consider the case based on that party's brief and the brief and oral arguments presented by other parties. The parties may, with consent of the Commission, stipulate to submit a case to the Commission on briefs without oral argument.

     (4) The Commission shall inform the parties of the time and place of oral argument. Unless the Commission otherwise orders, the procedure for oral argument shall be as follows:

     (a) Members of the Commission shall have an opportunity to ask questions that they wish the parties to address in their oral arguments.

     (b) The appellant(s) shall be allowed 20 minutes for oral argument, which may be divided between the initial presentation and rebuttal, and which shall be uninterrupted by questions asked by members of the Commission. Multiple appellants shall share the twenty minutes for argument.

     (c) The respondent(s) shall be allowed 20 minutes to respond, which shall be uninterrupted by questions asked by members of the Commission. Multiple respondents shall share the twenty minutes for argument.

     (d) After the parties' uninterrupted arguments, members of the Commission may ask brief questions of the parties concerning the facts of the case, the arguments made, and applicable law. Appellant(s) and respondent(s) shall each have 2 minutes to answer each question, except that the Chair may allow a longer time provided that both sides are afforded the same time to answer the question. Multiple petitioners or respondents shall share the allotted time to answer a question.

     (5) The Commission shall tape audio record all arguments, but any party may also arrange at its own expense to record the argument in the same or other a manner that does not delay or disrupt the proceeding.

     (6) The governing body shall ensure that all audiotape recordings, large maps, or exhibits and documents, which were not included in the duplicated record pursuant to 350-60-060 (1)(d), are present at the oral argument, even if the governing body chooses not to participate in oral argument. All other parties are encouraged to remind the governing body of this requirement. The governing body shall transmit such items to the Commission at the beginning of the hearing. The Commission shall have broad authority to redress a governing body's failure to transmit such items, including but not limited to, postponing the hearing, exclusion of the item from the record before the Commission, or judicial notice of the contents of the record.

     (7) The Commission may consult with its staff and counsel regarding facts, legal analysis, issues and matters in the appeal. The Commission may allow, but shall not be required to allow the parties to respond to the staff and counsel's statements to the Commission.

     (8) The Commission's rules concerning ex parte contact and appearance of fairness, Commission Rules 350-16-016 and 350-16-017 shall apply.

     (9) The Commission shall send a Notice of Hearing in accordance with Commission Rule 350-16, which shall also include a summary of the requirements and procedures for oral argument in this section.

     Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

AMENDATORY SECTION

350-60-130. Motions, Generally and Procedural Orders.

     (1) Any party may submit a motion for action by the Chair of the Commission. For matters not otherwise specified by this division, the Chair of the Commission and all parties shall observe the following procedures for submittal and disposition of motions.

     (2) A motion shall be filed at the Commission office by mail, email, or personal delivery, except that motions to which all parties consent may be filed by fax as provided in 350-60-040.

     (3) All contested motions shall be filed not less than 21 days prior to the date of the hearing before the Commission, except for good cause. A party seeking to file a motion less than 21 days prior to the hearing shall consult with all parties about the motion and present with the motion, an agreed schedule for responsesive briefs. The schedule shall leave no less than 7 days prior to the hearing for the Chair of the Commission to issue an order, unless the Chair of the Commission consents to a shorter period.

     (4) The movant shall serve a copy of the motion on all of the parties at the same time that the motion is filed and in the same manner as the motion was filed.

     (5) Unless otherwise ordered by the Chair of the Commission, any party has 10 days to file a response to a motion, except that no response shall be filed for uncontested motions. The responding party shall serve a copy of the response on all of the parties at the same time that the response is filed and in the same manner that the response was filed. No party may file a reply to the response(s).

     (6) Any motion or response to a motion that does not conform to this subsection shall be rejected.

     (7) The Chair of the Commission may provide the parties with a copy of an order on a motion by electronic mail to parties that have not opted out of email service.

AMENDATORY SECTION

350-60-160. Intervention.

     (1) Standing to Intervene: The applicant and aAny person who appeared before the county may intervene in a review proceeding before the Commission. An intervenor shall be entitled to receipt of all matters requiring service upon the parties beginning on the date the motion to intervene is filed, regardless of whether an objection is filed.

     (2) If the county review process is not open to persons adversely affected or aggrieved, any person adversely affected or aggrieved may intervene in a review proceeding before the Commission.

     (3) Motion to Intervene: In the interests of promoting timely resolution of appeals, a motion to intervene shall be filed at the Commission office and served within 14 days after the Notice of Appeal is filed pursuant to 350-60-050. The motion shall be served on all parties to the appeal and, if known, any person who has submitted a motion to intervene as of the date of the motion; the motion need not be served on all persons that the appellant served with the Notice of Hearing. The motion to intervene (exhibit 3) shall:

     (a) State whether the party is intervening on the side of the appellant or the respondent;

     (b) State the facts which show the party is entitled to intervene, supporting the statement with affidavits, citations to the record or other proof;

     (c) Include a brief "Intervenor's ADR Statement" stating whether the proposed intervenor is willing to attempt to resolve the case through alternative dispute resolution means. This statement shall not be used to argue merits of the appeal;

     (d) Include a brief statement about whether the proposed intervenor is willing to consider a shortened record in accordance with 350-60-060(f); and

     (e) If applicable, a statement opting out of email service (note that a party must affirmatively opt out of email service).

     (4) Objections to a motion to intervene shall be filed and served within 7 days of the motion.

     (5) The intervenor shall be entitled to participate in developing the record, including shortening the record and filing objections to the record.

     (6) The Chair of the Commission may conduct a telephone conference with the parties to consider an objection to a motion to intervene.

     (7) The Chair of the Commission shall issue a written decision on the motion to intervene, which shall be served on all the parties. The Chair of the Commission shall not consider the ADR statement for the purpose of deciding whether to grant the motion to intervene.

     (8) Intervenor's Brief:

     (a) If intervention is sought as an appellant, the brief shall be filed and served within the time limit for filing the Appellant's Brief, and shall satisfy the requirements for the Appellant's Brief in 350-60-080.

     (b) If intervention is sought as a respondent, the brief shall be filed and served within the time for filing a respondent's brief and shall satisfy the requirements for a respondent's brief in 350-60-100.

AMENDATORY SECTION

350-60-170. Amicus Participation.

     (1) A person or organization may appear as amicus only by permission of the Commission on written motion. The motion shall set forth the specific interest of the movant and state reasons why a review of relevant issues would be significantly aided by participation of the amicus. A copy of the motion shall be served on all parties to the proceeding. The motion may include a statement that the amicus party opts out of email service. The Chair of the Commission shall decide motions for amicus participation.

     (2) Appearance as amicus shall be by brief only, unless the Commission specifically requests oral argument. An amicus brief shall be subject to the same rules as those governing briefs of parties to the appeal and shall be filed and served within the time required for filing respondent's brief. An amicus brief shall be submitted at the time the respondent's brief is due unless a later date is authorized by the Chair of the Commission. No filing fee is required. An amicus brief shall have a green cover.

AMENDATORY SECTION

350-60-190. Extensions of Time.

     (1) In no event shall the time limit for the filing of the Notice of Appeal be extended.

     (2) All other time limits may be extended upon written consent of all parties, the Commission's motion or motion of a party.

     (3) A motion for extension of time shall state the reasons for granting the extension and must be filed and served within the time required for performance of the act for which an extension of time is requested.

     (4) A first motion for extension of time for any act, which requests an extension for no greater than 30 days and is stipulated to by all parties, shall be presumed granted on the date that the motion is filed. The Chair of the Commission shall confirm the extension to the parties.

     (5) Any other motion for extension of time that is stipulated to by all parties shall be presumed granted for a period of 14 days, or until the Chair issues an order, whichever is earlier. The Chair of the Commission shall issue an order granting or denying the extension, and may modify the request.

     (6) Any motion for extension of time that is stipulated to by all parties may be filed and served by fax.

     (7) Any motion for extension of time that is not stipulated to by all parties shall be treated as a contested motion pursuant to 350-60-130 above.

AMENDATORY SECTION

350-60-200. Stays.

     (1) A motion for a stay of a land use decision shall include:

     (a) A statement setting forth movant's right to standing to appeal the decision;

     (b) A statement explaining why the challenged decision is subject to the Commission's jurisdiction;

     (c) A statement of facts and reasons for issuing a stay, demonstrating a claim of error in the decision and specifying how the movant will suffer irreparable harm if a stay is not granted;

     (d) A suggested expedited briefing schedule;

     (e) A copy of the decision under review and copies of all ordinances, resolutions, plans or other documents necessary to show the standards applicable to the decision under review.

     (2) A copy of a motion for stay shall be served on the governing body and the applicant for the land use decision, on the same day the motion is filed with the Commission.

     (32) Unless otherwise ordered by the Chair of the Commission, a response to a motion for a stay of a land use decision shall be filed within 10 days after the motion is filed and shall set forth all matters in opposition to the motion and any facts showing any adverse effect, including an estimate of any monetary damages that will accrue if a stay is granted.

     (43) The Chair of the Commission shall base a decision on the stay, including the right to a stay, or conditions of any stay order, upon evidence presented. Evidence may be attached to the motion in the form of affidavits, documents or other materials, or presented at an evidentiary hearing which may be convened at the discretion of the Chair of the Commission and follow the process in 350-60-150.

AMENDATORY SECTION

350-60-205. Dismissal by the Commission.

     (1) Voluntary dismissal: The Chair of the Commission shall dismiss an appeal upon motion by the Appellant filed or expressed orally to the Commission prior to an oral decision. The dismissal shall be considered with prejudice and shall be effective on the date it is filed or expressed orally to the Commission.

     (2) Involuntary Dismissal: The Chair of the Commission may dismiss an appeal upon or without motion by any other party when it appears to the Chair that the Appellant and all intervenors on the side of the Appellant have failed to prosecute the appeal diligently; when the appeal is moot, or any other situation in which continuing the case would be manifestly unjust to the responding parties. The Chair of the Commission shall send a Notice of Intent to Dismiss stating the facts and reason for dismissal. The parties shall have 10 days to respond to the notice, unless the Notice of Intent to Dismiss specifies a longer time.

     (3) The Chair of the Commission shall issue and serve on the parties an order of dismissal, which shall be an appealable action by of the Commission.

     (4) When an appeal is dismissed, the Commission shall make no decision on the merits of the appeal. In the event that the parties have entered into any settlement agreement concerning the issues raised in the appeal, the Commission shall not be bound by any terms of the settlement agreement in the instant or future matters.

AMENDATORY SECTION

350-60-210. Final Order of Commission.

     (1) An Order of the Commission shall:

     (a) Have a cover page that cContains the caption of the appeal and states "Final Opinion and Order";

     (b) Specify the items of Acknowledge the record and other documents that were present before the Commission, and findings of fact and conclusions of law and/or an incorporation of findings and conclusions from the record below.

     (c) Address the Special Review under Rule 350-60-090, where applicable.

     (d) Indicate whether the decision being reviewed is dismissed, affirmed, reversed or remanded;

     (e) Contain the date of the final order;

     (f) Contain a statement of the right to appeal the Commission's Order in the following or substantially similar form, "NOTICE: You are entitled to judicial review of this order within 60 days of the date of this order, pursuant to section 15 (b)(4) of the Scenic Area Act, P.L. 99-663."; and

     (g) Be signed by the Chair of the Commission, or his/her delegate.

     (2) The final order shall be served on all parties. The parties are not afforded an opportunity to comment on the order before it is made final by the Commission.

     (3) When an order of the Commission becomes final it shall be made available to interested members of the public. The Commission may charge a reasonable fee for copies of its final orders or other orders furnished to members of the public.

     (4) No dissenting opinions by members of the Commission are allowed.

     (5) For the purpose of calculating the time for judicial review of the Commission's order, the date of the order shall be the date the order is served on the parties even if that date is later than the date that the order is signed.

AMENDATORY SECTION

350-70-040. Definitions.

     In these rules, unless the context or subject matter requires otherwise:

     (1) "Applicant" means the person who requested that the Executive Director of the Gorge Commission take an action which resulted in a land use decision.

     (2) "Commission" means the Columbia River Gorge Commission.

     (3) "Counties" means Multnomah, Hood River and Wasco counties, Oregon, and Clark, Skamania, and Klickitat counties, Washington.

     (4) "Days" means calendar days.

     (5) "Executive Director" or "Director" means the director of the Gorge Commission.

     (6) "File" means to deliver to Commission offices by personal delivery or by, U.S. Postal mail, or email. Unless otherwise specified, a document shall be considered filed on the date that it is personally delivered, or the date that it is mailed, or emailed. A document that is emailed prior to midnight on the due date shall be considered filed on that due date.

     (a) A motion filed with the consent of all parties may be filed by fax. When a motion is filed by fax, the original shall be mailed or delivered in person to the Commission offices on the same day or on the next business day. A motion filed by fax shall be considered filed on the date it is faxed if the fax is received at Commission office by 5:00 p.m.

     (b) Any document filed with the Commission shall include a certification that the document was served on all parties on the same or earlier date and in the same manner that the document was filed.

     (7) "Final decision": A decision is final when it is reduced to writing and bears the signature of the Executive Director of the Gorge Commission.

     (8) "Land use decision" means a final decision by the Executive Director based on the National Scenic Act.

     (9) "Notice" means the Notice of Appeal and refers to the document which must be filed with the Commission in order to begin a review proceeding.

     (10) "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the Commission. A person shall include the Executive Director of the Gorge Commission in his or her official capacity.

     (11) "Serve" or "Service" means to send with the United States Postal Service by first class mail or to deliver in person, or to send my email, a copy of the original to all parties, including intervenors.

     (a) Only motions that are filed by fax may be served by fax. If a motion is served by fax, then it shall also be served by mailing or delivering a copy of the original to the appellant and intervenors on the same or next day.

     (b) All documents served on the other parties shall include a certification that the document was served on the same or earlier date that the document was filed. Service shall occur on all parties in the same manner, but need not occur in the manner which the original document was filed (Exhibit 3).

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-70-042. Delegation of Authority to the Chair of the Commission.

     (1) Where these rules refer to the Chair of the Commission, the Commission has delegated authority to the Chair or presiding officer designated by the Chair to act on those matters for the Commission, including but not limited to, procedural orders on behalf of the Commission relating to case setting, preliminary motions, and other procedural matters. The Chair of the Commission may also act on other matters specified for Commission action when the context indicates action by the Chair of the Commission or when action by the full Commission would be impracticable.

     (2) The Chair of the Commission shall decide matters without oral argument, unless the Chair desires an oral hearing. The decision of the Chair of the Commission or presiding officer pursuant to this authority shall be final and not reviewable by the full Commission. The Chair of the Commission may also choose, at his or her sole discretion, to bring a matter to the full Commission for decision.

AMENDATORY SECTION

350-70-045. Time.

     (1) Computation: In computing any period of time prescribed or allowed by these rules, the day of the act from which the designated time period begins to run shall not be included and the last day of the time period shall be included.

     (2) Whenever a person has the right or is required to do some act or take some proceedings within a prescribed period of time after service or a notice or other paper document, and the service of the notice or other paper document is by mail, three (3) days shall be added to the prescribed time period. This does not apply to documents mailed when filing and service is accomplished by fax email.

     (3) When a deadline for accomplishing some act under these rules falls on a weekend or legal holiday, the deadline shall be the next business day, and all following deadlines shall be calculated from that deadline. A legal holiday shall be any day in which the United States Postal Service does not deliver mail, or when the Gorge Commission is closed for business.

NEW SECTION

350-70-046. Electronic Filing and Service.

     (1) The Commission allows filing and service of all documents by electronic mail (email) to the Commission's Office. All documents to be filed or served shall be emailed to crgc@gorgecommission.org, and shall have a subject heading that clearly identifies the email as filing a document or serving a document and that clearly identifies the appeal by caption and/or appeal number. The Commission allows email filing even if a person opts out of email service. A person need not file a document by mail if that person has already filed the document by email.

     (2) All documents may be served by email to persons that do not opt out of email service (see rules below for Notice of Appeal and Notice of Appearance). Persons filing a petition for review are encouraged to communicate with persons who are entitled to receive a copy of the Notice of Appeal about electronic service of the Notice of Appeal.

     (3) The preferred format for filed and served documents shall be a searchable portable document format (.pdf). Color originals available electronically, or easily able to be scanned in color shall be filed and served in color. Requirements for color covers or fastening of documents shall not apply to documents filed or served by email.

     (4) The Commission understands that persons' computers and internet service may display times that vary by several minutes, and have different technological capabilities. Persons filing and serving documents by email should communicate with each other to ensure that the documents can be received and read. The Commission will apply the rules in this chapter in the interest of promoting full participation in an appeal, resolving the appeal in an expeditious manner, and to promote justice in disputes concerning email filing and service such as whether a document was timely filed; timely served; should have been filed or served by email; whether and when the document was received; and whether the document was sent in a readable format. In resolving disputes over electronic service, the Commission will consider whether persons made good faith efforts to communicate about electronic mail service and whether persons attempted to resolve the dispute without involving the Commission.

     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-70-050. Notice of Appeal.

     (1) Filing: A person wishing to appeal a decision by the Director shall file a Notice of Appeal at the Commission office on or before the 30th day after the date the decision sought to be appealed becomes final. A Notice filed thereafter shall not be deemed timely filed and the appeal shall be dismissed.

     (2) Service of Notice of Appeal: The Appellant shall serve a copy of the Notice of Appeal on all persons identified in the Notice as required by subsection (3)(g) of this rule on or before the date the Notice of Appeal is required to be filed.

     (3) Contents of Notice of Appeal: The Notice of Appeal shall be substantially in the form set forth in Exhibit 1 and shall contain:

     (a) A caption, which specifies the title of the appeal as "In the matter of an appeal of Development Review Decision No. [FILE NUMBER] by [APPELLANT'S NAME]."

     (b) Adjacent to the caption, the heading "Notice of Appeal";

     (c) The full title of the decision to be reviewed as it appears on the final decision;

     (d) The date the decision to be reviewed became final;

     (e) A concise description of the appellant's reasons for appealing the decision including citations to the findings of fact, conclusions of law and conditions of approval in the decision and to provisions of the land use ordinance, sufficient to permit a person to understand the issues the appellant is raising to the Commission;

     (f) A brief "ADR Statement" stating whether the appellant is willing to attempt to settle the case through negotiation with the Executive Director and other interested persons, or through alternative dispute resolution (including but not limited to mediation), and specifying the potentially interested persons (if applicable). This statement shall not be used to argue the merits of the appeal.

     (g) The name, address, email address, and telephone number of each of the following:

     (A) The Appellant, except that if an attorney represents the appellant, then the attorney's name, address, email address, and telephone number shall be substituted for that of the appellant.

     (B) The applicant, if other than the appellant. If the applicant is represented by an attorney, then the applicant's address and telephone number may be omitted and the name, address and telephone number of the applicant's attorney shall be included;

     (C) Any other person to whom written notice of the land use decision was mailed as shown on the Executive Director's records. The telephone number and email address may be omitted for any such person.

     (h) A statement advising that all persons may give testimony at the hearing on the appeal; however, if a person wishes to receive a copy of the record an/or participate in the proceedings prior to the hearing, then that person must file and serve a Notice of Intervention pursuant to 350-70-170. The applicant is an automatic party to the appeal and need not file a notice of intervention.

     (i) A statement that the Commission will set the date, time, and place for a hearing on the appeal and provide notice of the hearing approximately 20 days prior to the date of the hearing.

     (j) A statement that written comments on the appeal will be accepted by the Commission until the close of the public hearing, but that persons are encouraged to submit written comments within 60 days from the date of the Notice of Appeal.

     (k) A statement informing all persons whether the party filing the Notice of Appeal opts out of email service, and a statement informing persons that service of documents may be by email unless a person expressly opts out of receiving documents by email.

     (kl) Proof of service upon all persons required to be named in the Notice.

     (4) Filing Fee and Deposit for Costs: The Columbia River Gorge Commission may charge a filing fee and deposit. Filing fees and deposits, if any, shall be set by the Gorge Commission's Executive Director and shall not exceed the true cost to the Commission of handling the appeal.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-70-070. Record.

     (1) Contents of Record: The record shall include the following:

     (a) The final decision including findings of fact and conclusions of law;

     (b) All evidence, exhibits, maps, documents or other written materials included in the Executive Director's land use application file; photos, maps, and exhibits that were prepared by or presented to the Executive Director in color shall be provided to the Commission in color in the original or certified copy of the record and all duplicate copies of the record;

     (c) Minutes of any meetings conducted by the Executive Director as required by law.

     (d) All documents relating to an applicant's request for special review, including the applicant's request, the Executive Director's recommendation, and all documents relied on by the Executive Director in making the recommendation.

     (e) The Executive Director may retain any audiotape recording, large maps, or exhibits and documents which are difficult to duplicate, until the date of oral argument. The Executive Director shall make these items reasonably available for inspection and duplication by any person during the pendency of the appeal, and shall specify in its filing of the record the procedure for reviewing for these items.

     (2) Preparation and Service of Record: Within 30 days after the Notice of Appeal is filed, the Executive Director shall prepare and serve a copy of the record, exclusive of audiotape recordings, large maps and other exhibits and documents which are difficult to duplicate, on the appellant and intervenors. The Commission may serve the record to persons in an electronic form to persons not opting out of email service.

     (3) Specifications of Record:

     (a) The record shall:

     (A) Include a cover bearing the title of the case as it appears in the Notice;

     (B) Begin with a table of contents, listing each item contained therein, and the page of the record where the item begins and listing each audiotape recording, large map or other exhibit or document retained by the Executive Director;

     (C) Be securely fastened;

     (D) Have pages numbered consecutively, with the page number at the bottom right-hand corner of each page;

     (E) Be arranged in inverse chronological order, with the most recent item on top.

     (3) The Commission may charge persons the cost of duplicating and serving paper copies of the record consistent with the Commission's public records rule, 350-12.

AMENDATORY SECTION

350-70-080. Objections to the Record.

     (1) Before filing an objection to the record, a person shall attempt to resolve the matter with the Executive Director.

     (2) An objection to the record shall be filed at the Commission office and served within 10 days following service of the record on the person filing the objection. The person filing the objection to the record shall certify that the objection is made in good faith, that the objection is material, that the objection was not made for the purpose of delay, and that he or she has contacted the Executive Director and attempted to resolve the objection. Objections may be made on the following grounds:

     (a) The record does not include all materials in the Executive Director's land use application file. The omitted item(s) shall be specified, as well as the basis for the claim that the item(s) are part of the record.

     (b) The record contains material not included in the Executive Director's land use application file. The item(s) not included shall be specified, as well as the basis for the claim that the item(s) are not part of the record. A document that is excluded from the record under this subsection may still be submitted to the Commission as otherwise provided in this division.

     (c) The minutes or transcripts of meetings or hearings are incomplete or do not accurately reflect the proceedings. An objection on grounds that the minutes or transcripts are incomplete or inaccurate shall demonstrate with particularity how the minutes or transcripts are defective and shall explain with particularity why the defect is material. Upon such demonstration, the Chair of the Commission shall require the Executive Director to produce additional evidence to prove the accuracy of the contested minutes or transcripts. If the evidence regarding contested minutes is an audiotape recording, a transcript of the relevant portion shall be submitted.

     (3) The Chair of the Commission may conduct a telephone conference to consider and resolve any objections to the record.

     (4) If an objection to the record is filed, the time limits for all further procedures under these rules shall be suspended. When the objection is resolved, the Chair of the Commission shall issue a letter or order settling the record and setting forth the schedule for subsequent events. Unless otherwise provided by the Chair of the Commission, the date of the letter or order shall be deemed the date that the record is settled for purposes of computing subsequent time limits. A letter or an order of the Chair settling the record is not appealable to the full Commission.

AMENDATORY SECTION

350-70-090. Appellant's Brief.

     (1) Filing and Service of Brief: The appellant shall file at the Commission office and serve an Appellant's Brief within 30 days after the date the record is filed under subsection .070 above, or settled under section .080 above or settled if a party files an objection to the record. The Brief shall also be served on intervenors. Failure by the Appellant to file an Appellant's Brief within the time required by this section shall result in dismissal of the appeal and forfeiture of the filing fee and deposit for costs to the Gorge Commission.

     (2) Specifications of Brief: The Brief shall

     (a) Begin with a table of contents;

     (b) Not exceed 50 pages, exclusive of appendices, unless permission for a longer brief is given by the Chair of the Commission. If an Appellant's Brief exceeding the 50 page limit is filed without permission, the Chair of the Commission shall notify the author, and a revised brief satisfying the 50 pages limit shall be filed and served within three (3) days of notification.

     (c) Have a blue cover page, stating the full title of the proceeding, and the names, addresses and telephone numbers of the appellant and all intervenors. If any of the above is represented by an attorney, the name, address and telephone number of the attorney shall be substituted.

     (d) If there is more than one appellant, the cover page shall specify the appellant(s) that are filing the Brief.

     (e) Be typewritten, in pica 14-point type in a regularly used font such as Times New Roman, Helvetica, or Calibri, and double spaced;

     (f) Be signed on the last page by the author. An electronic brief may contain an electronic signature or other generally accepted substitute.

     (3) Contents of Brief: The Appellant's Brief shall:

     (a) Present a clear and concise statement of the case, in the following order, with separate section headings:

     (A) The relief sought by the appellant;

     (B) A summary of the arguments;

     (C) A summary of the material facts. The summary shall be in narrative form with citations to the pages of the record where the facts alleged can be found, or other documents that the appellant intends to introduce at the hearing.

     (b) Set forth each issue under a separate heading. Where several issues present essentially the same legal questions, the argument in support of those issues shall be combined;

     (c) Contain, each as separate appendices, copies of all management plan provisions, comprehensive plan provisions, and all local state, regional, and federal laws cited in the brief, unless the provision is quoted verbatim in the Brief.

     (d) Contain, each as separate appendices, copies of any documents and evidence, not contained in the record, that are referred to in the Brief.

AMENDATORY SECTION

350-70-120. Motions, Generally and Procedural Orders.

     For the purpose of this section only, the term "party" shall refer to the appellant and any intervenor.

     (1) Any party may submit a motion for action by the Chair of the Commission. For matters not otherwise specified by this division, the Chair of the Commission and all parties shall observe the following procedures for submittal and disposition of motions.

     (2) A motion shall be filed at the Commission office by mail, email, or personal delivery, except that motions to which all parties consent may be filed by fax as provided in 350-70-040.

     (3) All contested motions shall be filed not less than 21 days prior to the date of the hearing before the Commission, except for good cause. A party seeking to file a motion less than 21 days prior to the hearing shall consult with all parties about the motion and present with the motion, an agreed schedule for responsesive briefs. The schedule shall leave no less than 7 days prior to the hearing for the Chair of the Commission to issue an order, unless the Chair of the Commission consents to a shorter period.

     (4) The movant shall serve a copy of the motion on all of the parties at the same time that the motion is filed and in the same manner as the motion was filed.

     (5) Unless otherwise ordered by the Chair of the Commission, any party has 10 days to file a response to a motion, except that no response shall be filed for uncontested motions. The responding party shall serve a copy of the response on all of the parties at the same time that the response is filed and in the same manner that the response was filed. No party may file a reply to the response(s).

     (6) Any motion or response to a motion that does not conform to this subsection shall be rejected.

     (7) The Chair of the Commission may provide the parties with a copy of an order on a motion by electronic mail to parties that have not opted out of email service.

AMENDATORY SECTION

350-70-170. Intervention.

     (1) The applicant and aAny person may intervene in an appeal proceeding before the Commission. Status as an intervenor shall be recognized upon filing a Notice of Intervention.

     (2) Notice of Intervention: In the interests of promoting timely resolution of appeals, a Notice of Intervention shall be filed at the Commission office within 14 days after the Notice of Appeal is filed pursuant to 350-70-050. The Notice of Intervention (exhibit 2) shall:

     (a) State whether the person supports or opposes the appellant, or whether the person neither supports nor opposes the appellant;

     (b) Include a brief statement of the reasons for filing the motion for intervention, including citations to the decision and land use ordinance, if different than the reasons set forth in the Notice of Appeal.

     (c) Include a brief "Intervenor's ADR Statement" stating whether the intervenor is willing to attempt to participate in resolving the case through negotiation or alternative dispute resolution, such as mediation. This statement shall not be used to argue merits of the appeal.

     (d) Be served on the appellant and all other persons who have filed a Notice of Intervention.

     (e) If applicable, a statement opting out of email service (note that a person must affirmatively opt out of email service).

     (3) A person who files a Notice of Intervention shall be entitled to receive a copy of all matters that are filed with the Commission.

     (4) Intervenor's Brief:

     (a) An intervenor who supports the Appellant may file a brief, due at the same time as the appellant's brief, that satisfies the requirements in 350-70-090, except that the Brief shall be entitled, "Intervenor [NAME]'s Brief in Support of Appellant".

     (b) An intervenor who opposes the Appellant may file a brief, due at the same time as the appellant's brief, that satisfies the requirements in 350-70-090, except that the Brief shall be entitled, "Intervenor [NAME]'s Brief Opposing Appellant", and shall have a red cover.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-70-200. Extensions of Time.

     (1) In no event shall the time limit for the filing of the Notice of Appeal be extended.

     (2) All other time limits may be extended upon written consent of the appellant and participants, the Commission's motion, or the motion of the appellant or a participant.

     (3) A motion for extension of time shall state the reasons for granting the extension and must be filed and served within the time required for performance of the act for which an extension of time is requested.

     (4) A first motion for extension of time for any act, which requests an extension for no greater than 30 days and is stipulated to by the appellant and all intervenors, shall be presumed granted on the date that the motion is filed. The Chair of the Commission shall confirm the extension to the appellant and all intervenors.

     (5) Any other motion for extension of time that is stipulated to by the appellant and all intervenors shall be presumed granted for a period of 14 days, or until the Chair issues an order, whichever is earlier. The Chair of the Commission shall issue an order granting or denying the extension, and may modify the request.

     (6) Any motion for extension of time that is not stipulated to by the appellant and all intervenors shall be treated as a contested motion pursuant to 350-70-130 above.

AMENDATORY SECTION

350-70-210. Stays.

     (1) Only an appellant or intervenor who would have standing to appeal a land use decision may file a motion for a stay. The movant may file a Notice of Intervention concurrently with the motion for a stay. A motion for a stay of a land use decision shall include:

     (a) A statement setting forth the movant's right to standing to appeal the decision;

     (b) A statement explaining why the challenged decision is subject to the Commission's jurisdiction;

     (c) A statement of facts and reasons for issuing a stay, demonstrating a colorable claim of error in the decision and specifying how the movant will suffer irreparable harm if a stay is not granted;

     (d) A suggested expedited briefing schedule;

     (e) A copy of the decision under review and copies of all ordinances, resolutions, plans or other documents necessary to show the standards applicable to the decision under review.

     (2) A copy of a motion for stay shall be served on the same day the motion is filed with the Commission.

     (32) Unless otherwise ordered by the Chair of the Commission, a response to a motion for a stay of a land use decision shall be filed within 10 days after the motion is filed and shall set forth all matters in opposition to the motion and any facts showing any adverse effect, including an estimate of any monetary damages that will accrue if a stay is granted.

     (43) The Chair of the Commission shall base a decision on the stay, including the right to a stay, or conditions of any stay order, upon the motion presented. Documents may be attached to the motion in the form of affidavits, maps or other materials, or presented at a hearing which may be convened at the discretion of the Chair of the Commission and follow the process in 350-70-140.

AMENDATORY SECTION

350-70-220. Final Order of Commission.

     (1) A Final Order of the Commission shall:

     (a) Contain the caption of the appeal and state "Final Opinion and Order";

     (b) Acknowledge the record and other documents that were present before the Commission, and findings of fact and conclusions of law and/or an incorporation of findings and conclusions from the record below.

     (c) Address the Special Review under Rule 350-60-090, where applicable.

     (bd) Contains findings of fact and conclusions of law or incorporates them from the record below.

     (ce) Indicate the Commission's decision;

     (df) Contain the date of the final order; and

     (eg) Be signed by the Chair of the Commission.

     (2) The order shall be served on all parties.

     (3) When an order of the Commission becomes final it shall be made available to interested members of the public. The Commission may charge a reasonable fee for copies of its final orders or other orders furnished to members of the public.

AMENDATORY SECTION

350-70-225. Dismissal by the Commission.

     (1) Voluntary dismissal: The Chair of the Commission shall dismiss an appeal upon motion by the Appellant filed or expressed orally to the Commission prior to an oral decision. The dismissal shall be considered with prejudice and shall be effective on the date it is filed or expressed orally to the Commission.

     (2) Involuntary Dismissal: The Chair of the Commission may dismiss an appeal when it appears to the Chair that the Appellant has failed to prosecute the appeal diligently; when the appeal is moot, or any other situation in which continuing the case would be manifestly unjust. The Chair of the Commission shall send a Notice of Intent to Dismiss stating the facts and reason for dismissal. The Appellant and intervenors shall have 10 days to respond to the notice, unless the Notice of Intent to Dismiss specifies a longer time.

     (3) The Chair of the Commission shall issue and serve on the Appellant and intervenors an order of dismissal, which shall be an appealable action by of the Commission.

     (4) When an appeal is dismissed, the Commission shall make no decision on the merits of the appeal. In the event that the Appellant and intervenors have entered into any settlement agreement concerning the issues raised in the appeal, the Commission shall not be bound by any terms of the settlement agreement in the instant or future matters.

DELETED SECTION

350-120-025.     Certification Procedures.

     All applications for certification shall follow either the process in 350-120-030 through 040 or the process in 350-120-050.

DELETED SECTION

350-120-030.     Recommendation of the Director.

     (1) In making a recommendation on a proposed grant or loan the Director shall:

     (a) Consult with the applicant and such agencies as the Director deems appropriate;

     (b) Consider information submitted by the applicant and all other relevant information available;

     (2) The Director shall recommend a grant or loan for certification only if it is consistent with the purposes of the Act, the management plan and land use ordinances adopted pursuant to the Act.

     (3) Within 21 days of acceptance of the application as complete, the Director shall issue a report setting forth the recommendation and the basis for it.

     (4) The Director shall mail a copy of the report to the applicant, Gorge Commissioners, the Forest Service, the States of Oregon and Washington, the Indian Tribes with treaty rights in the Scenic Area, and the planning director of the applicable county or city.

DELETED SECTION

350-120-040. Review and Decision by Commission.

     (1) The Commission shall review the recommendation and report of the Director at a scheduled meeting. Public comment shall be allowed.

     (2) The Commission may request further information at the meeting if it is deemed relevant to its decision.

     (3) At the first Commission meeting occurring five (5) or more working days of after issuance of the Director's report, the Commission shall make a decision on the grant or loan, as follows:

     (a) approve the request, certifying the grant or loan is consistent with the purposes of the Act, the management plan and land use ordinances adopted pursuant to the Act;

     (b) approve the request contingent upon approval of certain required state and/or federal environmental permits;

     (c) defer the decision, pending receipt of further information; or

     (d) deny the request, stating that the grant or loan is not consistent with the purposes of the Act, the management plan and land use ordinances adopted pursuant to the Act.

     (4) The Director shall notify the applicant, and the applicable state investment board of the Commission's decision.

AMENDATORY SECTION

350-120-050.     Expedited Certification Process.

     (1) The Executive Director of the Gorge Commission may issue a decision for a certification application that meets all of the following criteria. The Executive Director may, at his or her discretion, require an application be reviewed pursuant to 350-120-030 and 040 above.

     (a) The project and activity shall not involve ground disturbance or changes to structures that are 50 years old or older;

     (b) The project shall be located wholly within an Urban Area;

     (c) The project and activity shall be consistent with the economic development policies in the Management Plan

     (d) The project and activity shall be consistent with the Economic Development Plans for Oregon and Washington as amended from time to time by the states consistent with Section 11 (a) of the Scenic Area Act;

     (e) The project shall not involve relocation of a business from one National Scenic Area community to another;

     (f) The activity shall not involve program administration; and

     (g) The project shall occur only in counties that have in effect land use ordinances found consistent by the Commission and concurred on by the Secretary.

     (12) In making a decision to certify a proposed grant or loan the Director shall:

     (a) Consult with the applicant and such agencies as the Director deems appropriate, and

     (b) Consider information submitted by the applicant and all other relevant information available.

     (23) The Director shall approve a grant or loan for certification only if it is consistent with the purposes of the Act, and the management plan, and land use ordinances adopted pursuant to the Act, and the following criteria:.

     (a) The project and activity shall be consistent with the economic development policies in the Management Plan;

     (b) The project and activity shall be consistent with the Economic Development Plans for Oregon and Washington as amended from time to time by the states consistent with Section 11(a) of the Scenic Area Act;

     (c) The project shall not involve relocation of a business from one National Scenic Area community to another;

     (d) The activity shall not involve program administration; and

     (e) The project shall occur only in counties that have in effect land use ordinances found consistent by the Commission and concurred on by the Secretary.

     (34) Within 14 days of acceptance of the application as complete, the Director shall issue a decision along with findings of fact and conclusions of law setting forth the basis for the decision.

     (45) The Director shall mail a copy of the decision to the applicant, the Forest Service, the States of Oregon and Washington, the Indian Tribes with treaty rights in the Scenic Area, the planning director of the applicable county or city, and any person who requests a copy of the decision.

     (56) The Executive Director shall prepare periodic summaries periodically report to the Commission about of the certifications approved and denied through this expedited process for submission to the Gorge Commission.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Columbia River Gorge Commission and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Columbia River Gorge Commission and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

NEW SECTION

350-81-017. Advising When Review is Required

     (1) When a person inquires from the Commission whether a proposed development requires Scenic Area review and approval, and the Commission must consider whether the proposed development is in an urban area, the landowner or the landowner's representative shall submit to the Commission:

     (a) narrative metes and bounds description of the urban area boundary for the subject parcel;

     (b) survey map showing the subject parcel; the urban area boundary line; and the location of all proposed development, including but not limited to, buildings, other structures, fences, roads, and utilities; and,

     (c) written permission for Gorge Commission staff and persons providing technical assistance to the Commission to access the subject property to review or conduct surveying activities as needed for review of the survey.

     (2) A licensed surveyor shall prepare the metes and bounds description and survey map. The surveyor shall contact the Commission office for a copy of the official maps, other necessary information, and technical assistance. The survey shall be based on official maps and shall not assume the correctness of any prior boundary determination by a non-surveyor. The Commission may require the surveyor to review proposed methodology with a U.S. Forest Service surveyor or another surveyor providing technical assistance to the Commission.

     (3) After receipt of the items listed in section (1) above, the Commission will review the items and advise the landowner and county whether the proposed development requires approval under Scenic Area authorities. The Commission may engage a surveyor as needed for its review.

     (4) Any disagreement with the landowner's metes and bounds description or survey map shall be handled in a manner common to resolution of surveying disputes generally, and shall not be appealable pursuant to the Scenic Area Act, Management Plan, or Commission Rules.

     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-81-020. Definitions

. . . .

     (102) Natural resources (SMA): Naturally occurring features including land, water, air, plants, animals (including fish), plant and animal habitat, and scenery.

     (102a) Natural Resources (GMA): Wetlands, streams, ponds and lakes, riparian areas, wildlife and wildlife habitat, rare plants, and natural areas.

. . . .

AMENDATORY SECTION

350-81-082. Existing Uses and Discontinued Uses

     (1) Right to Continue Existing Uses and Structures

     (a) Except as otherwise provided, any existing use or structure may continue as long as it is used in the same manner and for the same purpose.

     (2) Replacement of Existing Structures Not Damaged or Destroyed by Disaster

     (a) Except as provided in 350-81-082(3), an existing structure may be replaced if a complete land use application for a replacement structure is submitted to the reviewing agency within one year of the date the use of the original structure was discontinued. The replacement structure shall comply with the following standards:

     (A) The replacement structure shall be used in the same manner and for the same purpose as the original structure.

     (B) The replacement structure may have a different size and/or location than the original structure. An existing mobile home may be replaced with a framed residence and an existing framed residence may be replaced with a mobile home.

     (C) The replacement structure shall be subject to the scenic, cultural, recreation and natural resources guidelines; the treaty rights guidelines; and the land use designations guidelines involving agricultural buffer zones, approval criteria for fire protection, and approval criteria for siting of dwellings on forest land.

     (D) The original structure shall be considered discontinued if a complete land use application for a replacement structure is not submitted within the one year time frame.

     (3) Replacement of Existing Structures Damaged or Destroyed by Disaster

     (a) An existing structure damaged or destroyed by fire, flood, landslide or other similar disaster may be replaced if a complete land use application for a replacement structure is submitted to the reviewing agency within two years of the date the original structure was damaged or destroyed. The replacement structure shall comply with the following standards:

     (A) The replacement structure shall be used in the same manner and for the same purpose as the original structure. An existing mobile home may be replaced with a framed residence.

     (B) The replacement structure shall be in the same location as the original structure. An exception may be granted and the replacement structure may be sited in a different location if the following conditions exist:

     (i) A registered civil engineer, registered geologist, or other qualified and licensed professional hired by the applicant demonstrates the disaster made the original building site physically unsuitable for reconstruction.

     (ii) The new building site is no more visible from key viewing areas than the original building site. An exception may be granted if a registered civil engineer, registered geologist, or other qualified and licensed professional hired by the applicant demonstrates the subject parcel lacks alternative building sites physically suitable for construction that are no more visible from key viewing areas than the original building site.

     (iii) The new building site complies with the cultural resources, natural resources, and treaty rights protection guidelines.

     (C) The replacement structure shall be the same size and height as the original structure, provided:

     (i) The footprint of the replacement structure may be up to 10 percent larger than the footprint of the original structure.

     (ii) The walls of the replacement structure shall be the same height as the walls of the original structure unless a minor increase is required to comply with standards in the current jurisdictional building code.

     (D) The replacement structure shall only be subject to the following scenic resources standards:

     (i) The replacement structure shall comply with the scenic resources guidelines regarding color and reflectivity. These guidelines shall be applied to achieve the applicable scenic standard (visually subordinate or not visually evident) to the maximum extent practicable.

     (ii) Decks, verandas, balconies and other open portions of the original structure shall not be rebuilt as enclosed (walls and roof) portions of the replacement structure.

     (iii) In the General Management Area, the replacement structure shall comply with the scenic resources guidelines regarding landscaping. These guidelines shall be applied to achieve the applicable scenic standard (visually subordinate) to the maximum extent practicable, provided:

     (I) Except as provided in 350-81-082 (3)(a)(D)(iii)(II), the percent of the replacement structure screened by vegetation as seen from key viewing areas shall not exceed the percent of the original structure that was screened by vegetation as seen from key viewing areas. Coniferous vegetation shall be replaced with coniferous vegetation and deciduous vegetation shall be replaced with deciduous vegetation unless the applicant chooses to use all coniferous vegetation.

     (II) In situations where the original structure was approved under Scenic Area regulations (e.g., Final Interim Guidelines, land use ordinance), the percent of the replacement structure screened by vegetation shall comply with any conditions of approval that required a landowner to preserve existing vegetation and/or plant and maintain new vegetation to screen the original structure as seen from key viewing areas.

     (III) To help determine how much vegetation may be required under 350-81-082 (3)(a)(D)(iii)(I) and (II), land use applications shall include all available documentation (photographic or otherwise) on the amount and type of vegetation that screened the original structure from key viewing areas. At a minimum, development review decisions shall include findings that address the following:

     (1) The percent of original structure facing each key viewing area that was screened by coniferous vegetation, for each key viewing area from which the structure was visible.

     (2) The percent of original structure facing each key viewing area that was screened by deciduous vegetation, for each key viewing area from which the structure was visible.

     (3) Elevation drawings showing the replacement structure and the amount of coniferous and deciduous vegetation that would screen the structure from key viewing areas in 10 years.

     (IV) The height of any new trees shall not be required to exceed 5 feet.

     (V) The time frame for achieving visual subordinance shall be 10 years or less from the commencement of construction.

     (iv) In the Special Management Area, the replacement structure shall comply with the scenic resources guidelines regarding landscaping. These guidelines shall be applied to achieve the applicable scenic standard (visually subordinate or not visually evident) to the maximum extent practicable, provided:

     (I) The Scenic Resources Implementation Handbook shall be utilized to determine approvable species and minimum approvable sizes of new trees planted (based on average growth rates expected for approvable species).

     (II) The height of any new trees shall not be required to exceed 5 feet.

     (III) The time frame for achieving the applicable scenic standard (visually subordinate or not visually evident) shall be 10 years.

     (E) The replacement structure shall be subject to 350-81-082 (2)(a)(A), (B), and (C) above if it would not comply with 350-81-082 (3)(a)(B) and (C).

     (F) The original structure shall be considered discontinued if a complete land use application for a replacement structure is not submitted within the two year time frame.

     (4) Changes to Existing Uses and Structures

     (a) Except as otherwise provided, any change to an existing use or modification to the exterior of an existing structure shall be subject to review and approval pursuant to Commission Rule 350-81.

     (A) Expansion of Existing Commercial and Multifamily Residential Uses: In the SMA, existing commercial and multifamily residential uses may expand as necessary for successful operation on the dedicated site, subject to guidelines to minimize adverse effects on scenic, cultural, natural, and recreation resources. Expansion beyond the dedicated site shall be prohibited.

     (B) Expansion of Existing Industrial Uses in the GMA: Existing industrial uses in the GMA may expand as necessary for successful operation on the dedicated site. Expansion beyond the dedicated site shall be prohibited.

     (C) (B) Conversion of Existing Industrial Uses in the GMA: In the GMA, existing industrial uses may convert to less intensive uses. For this section, a less intensive use is a commercial, recreation, or residential use with fewer adverse effects upon scenic, cultural, natural, and recreation resources.

     (D) (C) Existing Development or Production of Mineral Resources in the GMA: In the GMA, existing development or production of mineral resources may continue unless the Gorge Commission determines that the uses adversely affect the scenic, cultural, natural, or recreation resources of the Scenic Area. These uses will be considered discontinued and subject to land use ordinances under the Management Plan if any of the following conditions exist:

     (i) The mined land has been reclaimed naturally or artificially to a point where it is revegetated to 50 percent of its original cover (considering both basal and canopy) or has reverted to another beneficial use, such as grazing. Mined land shall not include terrain that was merely leveled or cleared of vegetation.

     (ii) The site has not maintained a required state permit.

     (iii) The site has not operated legally within 5 years before October 15, 1991.

     (E) (D) Existing Development or Production of Mineral Resources in the SMA: Uses involving the exploration, development, or production of sand, gravel, or crushed rock in the SMA may continue if both of the following conditions exist:

     (i) The sand, gravel, or crushed rock is used for construction or maintenance of roads used to manage or harvest forest products in the SMA.

     (ii) A determination by the Forest Service finds that the use does not adversely affect the scenic, cultural, natural, or recreation resources.

     (5) Discontinuance of Existing Uses and Structures

     (a) Except as provided in 350-81-082 (3)(a) and (3)(a)(F), any use or structure that is discontinued for one (1) year or more shall not be considered an existing use or structure. Proof of intent to abandon is not required to determine that an existing use or use of an existing structure has been discontinued.

     (A) Multiple Uses: An existing use or structure with more than one legally established use may discontinue one of the uses without discontinuing the others.

     (B) Change in Use: An existing use or structure shall become discontinued if the use or use of the structure changes.

     (6) Discontinued Uses and Structures:

     (a) Re-establishment or replacement of any use or structure that has been discontinued shall be subject to all applicable policies and guidelines in the Management Plan, including, but not limited to, guidelines for land use designations and scenic, cultural, recreation and natural resources.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-81-540. General Management Area Cultural Resource Review Criteria

     (1) General Provisions for Implementing the Cultural Resources Protection Process.

     (a) All cultural resource 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 Code of Federal Regulations (CFR) Part 61 and Guidelines for Evaluating and Documenting Traditional Cultural Properties (Parker and King, no date).

     (b) Cultural resource surveys, evaluations, assessments, and mitigation plans shall generally be conducted in consultation with Indian tribal governments and any person who submits written comments on a proposed use (interested person). Indian tribal governments shall be consulted if the affected cultural resources are prehistoric or otherwise associated with Native Americans. If the cultural resources are associated with non-Native Americans, such as an historic house or pioneer campsite, the Indian tribal governments do not have to be consulted.

     (c) Reconnaissance and Historic Surveys and Survey Reports.

     (A) Reconnaissance survey requirements and exceptions.

     (i) A reconnaissance survey shall be required for all proposed uses within 500 feet of a known cultural resource, including those uses listed as exceptions in 350-81-540 (1)(c)(A)(ii) below.

     (ii) A reconnaissance survey shall be required for all proposed uses, except:

     (I) The modification, expansion, replacement, or reconstruction of existing buildings and structures.

     (II) Proposed uses that would not disturb the ground, including land divisions and lot-line adjustments; storage sheds that do not require a foundation; low-intensity recreation uses, such as fishing, hunting, and hiking; installation of surface chemical toilets; hand treatment of brush within established rights-of-way; and new uses of existing structures.

     (III) Proposed uses that involve minor ground disturbance, as defined by depth and extent, including repair and maintenance of lawfully constructed and serviceable structures; home gardens; livestock grazing; cultivation that employs minimum tillage techniques, such as replanting pastures using a grassland drill; construction of fences; new utility poles that are installed using an auger, post-hole digger, or similar implement; and placement of mobile homes where septic systems and underground utilities are not involved.

     The Gorge Commission shall review all land use applications and determine if proposed uses would have a minor ground disturbance.

     (IV) Proposed uses that occur on sites that have been disturbed by human activities, provided the proposed uses do not exceed the depth and extent of existing ground disturbance. To qualify for this exception, a project applicant must demonstrate that land-disturbing activities occurred in the project area. Land-disturbing activities include grading and cultivation.

     (V) Proposed uses that would occur on sites that have been adequately surveyed in the past. The project applicant must demonstrate that the project area has been adequately surveyed to qualify for this exception. Past surveys must have been conducted by a qualified professional and must include a surface survey and subsurface testing. The nature and extent of any cultural resources in the project area must be adequately documented.

     (VI) Proposed uses occurring in areas that have a low probability of containing cultural resources, except:

     • Residential development that involves two or more new dwellings for the same project applicant.

     • Recreation facilities that contain parking areas for more than 10 cars, overnight camping facilities, boat ramps, and visitor information and environmental education facilities.

     • Public transportation facilities that are outside improved rights-of-way.

     • Electric facilities, lines, equipment, and appurtenances that are 33 kilovolts or greater.

     • Communications, water and sewer, and natural gas transmission (as opposed to distribution) lines, pipes, equipment, and appurtenances.

     Areas that have a low probability of containing cultural resources shall be identified using the results of reconnaissance surveys conducted by the Gorge Commission, the Forest Service, public agencies, and private archaeologists.

     The Gorge Commission, after consulting Indian tribal governments and state historic preservation officers, shall prepare and adopt a map showing areas that have a low probability of containing cultural resources. This map shall be adopted within 200 days after the Secretary of Agriculture concurs with the Management Plan. It shall be refined and revised as additional reconnaissance surveys are conducted. Areas shall be added or deleted as warranted. All revisions of this map shall be reviewed and approved by the Gorge Commission.

     (B) A historic survey shall be required for all proposed uses that would alter the exterior architectural appearance of buildings and structures that are 50 years old or older, or would compromise features of the surrounding area that are important in defining the historic or architectural character of buildings or structures that are 50 years old or older.

     (C) The Gorge Commission shall conduct and pay for all reconnaissance and historic surveys for small-scale uses in the General Management Area. When archaeological resources or traditional cultural properties are discovered, the Gorge Commission also shall identify the approximate boundaries of the resource or property and delineate a reasonable buffer zone. Reconnaissance surveys and buffer zone delineations for large-scale uses shall be the responsibility of the project applicant.

     For 350-81-540, large-scale uses include residential development involving two or more new dwellings; all recreation facilities; commercial and industrial development; public transportation facilities; electric facilities, lines, equipment, and appurtenances that are 33 kilovolts or greater; and communications, water and sewer, and natural gas transmission (as opposed to distribution) lines, pipes, equipment, and appurtenances.

     (D) Reconnaissance Surveys for Small-Scale Uses.

     Reconnaissance surveys for small-scale uses shall generally include a surface survey and subsurface testing. They shall meet the following guidelines:

     (i) A surface survey of the project area shall be conducted, except for inundated areas and impenetrable thickets.

     (ii) Subsurface testing shall be conducted if the surface survey reveals that cultural resources may be present. Subsurface probes shall be placed at intervals sufficient to determine the absence or presence of cultural resources.

     (E) Reconnaissance Survey Reports for Small-Scale Uses

     The results of a reconnaissance survey for small-scale uses shall be documented in a confidential report that includes:

     (i) A description of the fieldwork methodology used to identity cultural resources, including a description of the type and extent of the reconnaissance survey.

     (ii) A description of any cultural resources that were discovered in the project area, including a written description and photographs.

     (iii) A map that shows the project area, the areas surveyed, the location of subsurface probes, and, if applicable, the approximate boundaries of the affected cultural resources and a reasonable buffer zone.

     (F) Reconnaissance Surveys for Large-Scale Uses

     (i) Reconnaissance surveys for large-scale uses shall be designed by a qualified professional. A written description of the survey shall be submitted to and approved by the Gorge Commission's designated archaeologist.

     (ii) Reconnaissance surveys shall reflect the physical characteristics of the project area and the design and potential effects of the proposed use. They shall meet the following guidelines:

     (I) Archival research shall be performed before any field work. It should entail a thorough examination of tax records; historic maps, photographs, and drawings; previous archaeological, historic, and ethnographic research; cultural resource inventories and records maintained by federal, state, and local agencies; and primary historic accounts, such as diaries, journals, letters, and newspapers.

     (II) Surface surveys shall include the entire project area, except for inundated areas and impenetrable thickets.

     (III) Subsurface probes shall be placed at intervals sufficient to document the presence or absence of cultural resources.

     (IV) Archaeological site inventory forms shall be submitted to the State Historic Preservation Officer whenever cultural resources are discovered.

     (G) Reconnaissance Survey Reports for Large-Scale Uses

     The results of a reconnaissance survey for large-scale uses shall be documented in a confidential report that includes:

     (i) A description of the proposed use, including drawings and maps.

     (ii) A description of the project area, including soils, vegetation, topography, drainage, past alterations, and existing land use.

     (iii) A list of the documents and records examined during the archival research and a description of any prehistoric or historic events associated with the project area.

     (iv) A description of the fieldwork methodology used to identify cultural resources, including a map that shows the project area, the areas surveyed, and the location of subsurface probes. The map shall be prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail.

     (v) An inventory of the cultural resources that exist in the project area, including a written description, photographs, drawings, and a map. The map shall be prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail.

     (vi) A summary of all written comments submitted by Indian tribal governments and other interested persons.

     (vii) A preliminary assessment of whether the proposed use would or would not have an effect on cultural resources. The assessment shall incorporate concerns and recommendations voiced during consultation meetings and information obtained through archival and ethnographic research and field surveys.

     (H) Historic Surveys and Reports

     (i) Historic surveys shall document the location, form, style, integrity, and physical condition of historic buildings and structures. They shall include original photographs and maps. Archival research, blueprints, and drawings should be used as necessary.

     (ii) Historic surveys shall describe any uses that will alter or destroy the exterior architectural appearance of the historic buildings or structures, or compromise features of the site that are important in defining the overall historic character of the historic buildings or structures.

     (iii) The project applicant shall provide detailed architectural drawings and building plans that clearly illustrate all proposed alterations.

     (d) The responsibility and cost of preparing an evaluation of significance, assessment of effect, or mitigation plan shall be borne by the project applicant, except for resources discovered during construction. The Gorge Commission shall conduct and pay for evaluations of significance and mitigation plans for resources that are discovered during construction of small-scale and large-scale uses.

     (e) Cultural resources are significant if one of the following criteria is satisfied:

     (A) The cultural resources are included in, or eligible for inclusion in, the National Register of Historic Places. The criteria for evaluating the eligibility of cultural resources for the National Register of Historic Places appear in the "National Register Criteria for Evaluation" (36 CFR 60.4).

     (B) The cultural resources are determined to be culturally significant by an Indian tribal government, based on criteria developed by that Indian tribal government and filed with the Gorge Commission.

     (f) The Gorge Commission shall establish a Cultural Advisory Committee (CAC). The CAC shall comprise cultural resource professionals, interested individuals, and at least one representative from each of the four Indian tribes. If a project applicant's and Indian tribal government's evaluations of significance contradict, the Cultural Advisory Committee (CAC) shall review the applicant's evaluation and Indian tribal government's substantiated concerns. The CAC will submit a recommendation to the Executive Director as to whether affected cultural resources are significant.

     (g) Determination of potential effects to significant cultural resources shall include consideration of cumulative effects of proposed developments that are subject to any of the following: 1) a reconnaissance or historic survey; 2) a determination of significance; 3) an assessment of effect; or 4) a mitigation plan.

     (2) Cultural Resource Reconnaissance and Historic Surveys

     (a) Consultation and Ethnographic Research

     (A) When written comments are submitted to the Executive Director within the comment period provided in 350-81-040, the project applicant shall offer to meet with the interested persons within 10 calendar days. The 10-day consultation period may be extended upon agreement between the project applicant and the interested persons. Consultation meetings should provide an opportunity for interested persons to explain how the proposed use may affect cultural resources. Recommendations to avoid potential conflicts should be discussed.

     All written comments and consultation meeting minutes shall be incorporated into the reconnaissance or historic survey report. In instances where a survey is not required, all such information shall be recorded and addressed in a report that typifies a survey report; inapplicable elements may be omitted.

     (B) A project applicant who is proposing a large-scale use shall conduct interviews and other forms of ethnographic research if interested persons submit a written request for such research. All requests must include a description of the cultural resources that may be affected by the proposed use and the identity of knowledgeable informants. Ethnographic research shall be conducted by qualified specialists. Tape recordings, maps, photographs, and minutes shall be used when appropriate.

     All written comments, consultation meeting minutes, and ethnographic research shall be incorporated into the reconnaissance or historic survey report. In instances where a survey is not required, all such information shall be recorded and addressed in a report that typifies a survey report.

     (b) Notice of Survey Results

     (A) The Executive Director shall submit a copy of all cultural resource survey reports to the State Historic Preservation Officer and the Indian tribal governments. Survey reports may include measures to avoid affected cultural resources, such as a map that shows a reasonable buffer zone.

     (B) The State Historic Preservation Officer and the tribes shall have 30 calendar days from the date a survey report is mailed to submit written comments to the Executive Director. The Executive Director shall record and address all written comments in the development review order.

     (c) Conclusion of the Cultural Resource Protection Process

     (A) The Executive Director shall make a final decision on whether the proposed use would be consistent with 350-81-540. If the final decision contradicts the comments submitted by the State Historic Preservation Officer, the Executive Director shall justify how an opposing conclusion was reached.

     (B) The cultural resource protection process may conclude when one of the following conditions exists:

     (i) The proposed use does not require a reconnaissance or historic survey, no cultural resources are known to exist in the project area, and no substantiated concerns were voiced by interested persons within 21 calendar days of the date that a notice was mailed.

     (ii) A reconnaissance survey demonstrates that cultural resources do not exist in the project area, no substantiated concerns were voiced by interested persons within 21 calendar days of the date that a notice was mailed, and no substantiated concerns regarding the reconnaissance survey were voiced by the State Historic Preservation Officer or Indian tribal governments during the 30-day comment period required in subsection 2 (b)(B) above.

     (iii) The proposed use would avoid archaeological resources and traditional cultural resources that exist in the project area. To meet this guideline, a reasonable buffer zone must be established around the affected resources or properties; all ground-disturbing activities shall be prohibited within the buffer zone.

     Buffer zones must preserve the integrity and context of cultural resources. They will vary in width depending on the eventual use of the project area, the type of cultural resources that are present, and the characteristics for which the cultural resources may be significant. A deed covenant, easement, or other appropriate mechanism shall be developed to ensure that the buffer zone and the cultural resources are protected.

     An evaluation of significance shall be conducted if a project applicant decides not to avoid the affected cultural resource. In these instances, the reconnaissance survey and survey report shall be incorporated into the evaluation of significance.

     (iv) A historic survey demonstrates that the proposed use would not have an effect on historic buildings or structures because:

     (a) The State Historic Preservation Officer concludes that the historic buildings or structures are clearly not significant, as determined by using the criteria in the "National Register Criteria for Evaluation" (36 CFR 60.4), or

     (b) The proposed use would not compromise the historic or architectural character of the affected buildings or structures, or compromise features of the site that are important in defining the overall historic character of the affected buildings or structures, as determined by the guidelines and standards in The Secretary of the Interior's Standards for Rehabilitation (U.S. Department of the Interior 1990) and The Secretary of the Interior's Standards for Historic Preservation Projects (U.S. Department of the Interior 1983).

     The historic survey conducted by the Gorge Commission may provide sufficient information to satisfy these guidelines. If it does not, architectural and building plans, photographs, and archival research may be required. The project applicant shall be responsible for providing information beyond that included in the survey conducted by the Gorge Commission.

     The historic survey and report must demonstrate that these guidelines have been clearly and absolutely satisfied. If the State Historic Preservation Officer or the Executive Director question whether these guidelines have been satisfied, the project applicant shall conduct an evaluation of significance.

     (3) Evaluation of Significance

     (a) Evaluation Criteria and Information Needs

     If cultural resources would be affected by a new use, an evaluation of their significance shall be conducted. Evaluations of significance shall meet the following guidelines:

     (A) Evaluations of significance shall follow the procedures in How to Apply the National Register Criteria for Evaluation (U.S. Department of the Interior, no date) and Guidelines for Evaluating and Documenting Traditional Cultural Properties (Parker and King, no date). They shall be presented within local and regional contexts and shall be guided by previous research and current research designs that are relevant to specific research questions for the Columbia River Gorge.

     (B) To evaluate the significance of cultural resources, the information gathered during the reconnaissance or historic survey may have to be supplemented. Detailed field mapping, subsurface testing, photographic documentation, laboratory analyses, and archival research may be required.

     (C) The project applicant shall contact Indian tribal governments and interested persons, as appropriate. Ethnographic research shall be undertaken as necessary to fully evaluate the significance of the cultural resources.

     (D) The evaluation of significance shall follow the principles, guidelines, and report format recommended by the Oregon State Historic Preservation Office (Oregon SHPO 1990) or Washington Office of Archaeology and Historic Preservation (Washington SHPO, no date). It shall incorporate the results of the reconnaissance or historic survey and shall illustrate why each cultural resource is or is not significant. Findings shall be presented within the context of relevant local and regional research.

     (E) All documentation used to support the evaluation of significance shall be cited. Evidence of consultation with Indian tribal governments and other interested persons shall be presented. All comments, recommendations, and correspondence from Indian tribal governments and interested persons shall be appended to the evaluation of significance.

     (b) Notice of Evaluation Results

     (A) If the evaluation of significance demonstrates that the cultural resources are not significant, the Executive Director shall submit a copy of the evaluation of significance to the State Historic Preservation Officer and the Indian tribal governments.

     (B) The State Historic Preservation Officer, Indian tribal governments, and interested persons shall have 30 calendar days from the date the evaluation of significance is mailed to submit written comments to the Executive Director. The Executive Director shall record and address all written comments in the development review order.

     (c) Cultural Resources are Culturally Significant

     (A) If an Indian tribal government believes that the affected cultural resources are culturally significant, contrary to the evaluation submitted by the project applicant, the Cultural Advisory Committee (CAC) shall make an independent review of the applicant's evaluation and the Indian tribal government's substantiated concerns. The CAC shall formulate a recommendation regarding the significance of the cultural resources.

     (B) The Indian tribal government shall substantiate its concerns in a written report. The report shall be submitted to the Executive Director, CAC, and the project applicant within 15 calendar days from the date the evaluation of significance is mailed. The CAC must submit its recommendation to the Executive Director within 30 calendar days from the date the evaluation of significance is mailed.

     (d) Conclusion of the Cultural Resource Protection Process

     (A) The Executive Director shall make a final decision on whether the affected resources are significant. If the final decision contradicts the comments or recommendations submitted by the State Historic Preservation Officer or CAC, the Executive Director shall justify how an opposing conclusion was reached.

     (B) The cultural resource protection process may conclude if the affected cultural resources are not significant.

     (C) If the project applicant or the Executive Director determines that the cultural resources are significant, the effects of the proposed use shall be assessed.

     (4) Assessment of Effect

     (a) Assessment Criteria and Information Needs

     If a use could potentially affect significant cultural resources, an assessment shall be made to determine if it would have no effect, no adverse effect, or an adverse effect. The assessment shall meet the following guidelines:

     (A) The assessment of effect shall be based on the criteria published in "Protection of Historic Properties" (36 CFR 800.5) and shall incorporate the results of the reconnaissance or historic survey and the evaluation of significance. All documentation shall follow the requirements listed in 36 CFR 800.11.

     (i) Proposed uses are considered to have an effect on cultural resources when they alter or destroy characteristics of the resources that make them significant [36 CFR 800.5].

     (ii) Proposed uses are considered to have an adverse effect when they may diminish the integrity of the cultural resource's location, design, setting, materials, workmanship, feeling, or association [36 CFR 800.5]. Adverse effects on cultural resources include, but are not limited to:

     (I) Physical destruction, damage, or alteration of all or part of the cultural resource.

     (II) Isolation of the cultural resource from its setting or alteration of the character of the resource's setting when that character contributes to the resource's qualification as being significant.

     (III) Introduction of visual, audible, or atmospheric elements that are out of character with the cultural resource or its setting.

     (IV) Neglect of a significant cultural resource resulting in its deterioration or destruction, except as described in 36 CFR 800.5.

     (B) The assessment of effect shall be prepared in consultation with Indian tribal governments and interested persons, as appropriate. The concerns and recommendations voiced by Indian tribal governments and interested persons shall be recorded and addressed in the assessment.

     (C) The effects of a proposed use that would otherwise be determined to be adverse may be considered to be not adverse if any of the following instances apply:

     (i) The cultural resources are of value only for their potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research before development begins, and such research is conducted in accordance with applicable professional standards and guidelines.

     (ii) The undertaking is limited to the rehabilitation of buildings and structures, and is conducted in a manner that preserves the historical and architectural character of affected cultural resources through conformance with The Secretary of the Interior's Standards for Rehabilitation (U.S. Department of the Interior 1990) and The Secretary of the Interior's Standards for Historic Preservation Projects (U.S. Department of the Interior 1983).

     (b) Notice of Assessment Results

     (A) If the assessment of effect concludes that the proposed use would have no effect or no adverse effect on significant cultural resources, the Executive Director shall submit a copy of the assessment to the State Historic Preservation Officer and the Indian tribal governments.

     (B) The State Historic Preservation Officer, Indian tribal governments, and interested persons shall have 30 calendar days from the date the assessment of effect is mailed to submit written comments to the Executive Director. The Executive Director shall record and address all written comments in the development review order.

     (c) Conclusion of the Cultural Resource Protection Process

     (A) The Executive Director shall make a final decision on whether the proposed use would have no effect, no adverse effect, or an adverse effect. If the final decision contradicts the comments submitted by the State Historic Preservation Officer, the Executive Director shall justify how an opposing conclusion was reached.

     (B) The cultural resource protection process may conclude if the proposed use would have no effect or no adverse effect on significant cultural resources.

     (C) A mitigation plan shall be prepared if a project applicant or the Executive Director determines that the proposed use would have an adverse effect on significant cultural resources.

     (5) Mitigation Plans

     (a) Mitigation Plan Criteria and Information Needs

     Mitigation plans shall be prepared when proposed uses would have an adverse effect on significant cultural resources. The plans shall reduce an adverse effect to no effect or no adverse effect. Mitigation plans shall meet the following guidelines:

     (A) Mitigation plans shall be prepared in consultation with persons who have concerns about or knowledge of the affected cultural resources, including Indian tribal governments, Native Americans, local governments whose jurisdiction encompasses the project area, and the State Historic Preservation Officer.

     (B) Avoidance of cultural resources through project design and modification is preferred. Avoidance may be effected by reducing the size, scope, configuration, and density of the proposed use.

     Alternative mitigation measures shall be used only if avoidance is not practicable. Alternative measures include, but are not limited to, burial under fill, stabilization, removal of the cultural resource to a safer place, and partial to full excavation and recordation. If the mitigation plan includes buffer zones to protect cultural resources, a deed covenant, easement, or other appropriate mechanism shall be developed and recorded in county deeds and records.

     (C) Mitigation plans shall incorporate the results of the reconnaissance or historic survey, the evaluation of significance, and the assessment of effect, and shall provide the documentation required in 36 CFR 800.11, including, but not limited to:

     (i) A description and evaluation of any alternatives or mitigation measures that the project applicant proposes for reducing the effects of the proposed use.

     (ii) A description of any alternatives or mitigation measures that were considered but not chosen and the reasons for their rejection.

     (iii) Documentation of consultation with the State Historic Preservation Officer regarding any alternatives or mitigation measures.

     (iv) A description of the project applicant's efforts to obtain and consider the views of Indian tribal governments, interested persons, and Executive Director.

     (v) Copies of any written recommendations submitted to the Executive Director or project applicant regarding the effects of the proposed use on cultural resources and alternatives to avoid or reduce those effects.

     (b) Notice of Mitigation Plan Results

     (A) If a mitigation plan reduces the effect of a use from an adverse effect to no effect or no adverse effect, the Executive Director shall submit a copy of the mitigation plan to the State Historic Preservation Officer and the Indian tribal governments.

     (B) The State Historic Preservation Officer, Indian tribal governments, and interested persons shall have 30 calendar days from the date the mitigation plan is mailed to submit written comments to the Executive Director. The Executive Director shall record and address all written comments in the development review order.

     (c) Conclusion of the Cultural Resource Protection Process

     (A) The Executive Director shall make a final decision on whether the mitigation plan would reduce an adverse effect to no effect or no adverse effect. If the final decision contradicts the comments submitted by the State Historic Preservation Officer, the Executive Director shall justify how an opposing conclusion was reached.

     (B) The cultural resource protection process may conclude if a mitigation plan would reduce an adverse effect to no effect or no adverse effect.

     (C) The proposed use shall be prohibited when acceptable mitigation measures fail to reduce an adverse effect to no effect or no adverse effect.

     (6) Cultural Resources Discovered After Construction Begins

     The following procedures shall be effected when cultural resources are discovered during construction activities. All survey and evaluation reports and mitigation plans shall be submitted to the Executive Director and the State Historic Preservation Officer. Indian tribal governments also shall receive a copy of all reports and plans if the cultural resources are prehistoric or otherwise associated with Native Americans.

     (a) Halt of Construction. All construction activities within 100 feet of the discovered cultural resource shall cease. The cultural resources shall remain as found; further disturbance is prohibited.

     (b) Notification. The project applicant shall notify the Executive Director within 24 hours of the discovery. If the cultural resources are prehistoric or otherwise associated with Native Americans, the project applicant shall also notify the Indian tribal governments within 24 hours.

     (c) Survey and Evaluation. The Gorge Commission shall survey the cultural resources after obtaining written permission from the landowner and appropriate permits from the State Historic Preservation Officer. (See Oregon Revised Statute [ORS] 358.905 to 358.955, and Revised Code of Washington [RCW] 27.53). It shall gather enough information to evaluate the significance of the cultural resources. The survey and evaluation shall be documented in a report that generally follows the guidelines in "Reconnaissance Survey Reports for Large-Scale Uses" [350-80-540 (1)(c)(G)] and "Evaluation of Significance: Evaluation Criteria and Information Needs" [350-80-540 (3)(a)].

     Based on the survey and evaluation report and any written comments, the Executive Director shall make a final decision on whether the resources are significant. Construction activities may recommence if the cultural resources are not significant.

     A mitigation plan shall be prepared if the affected cultural resources are significant.

     (d) Mitigation Plan. Mitigation plans shall be prepared according to the information, consultation, and report guidelines contained in the "Mitigation Plans: Mitigation Plan Criteria and Information Needs" section of this chapter. Construction activities may recommence when the conditions in the mitigation plan have been executed.

     (7) Discovery of Human Remains

     The following procedures shall be effected when human remains are discovered during a cultural resource survey or during construction. Human remains means articulated or disarticulated human skeletal remains, bones, or teeth, with or without attendant burial artifacts.

     (a) Halt of Activities. All survey, excavation, and construction activities shall cease. The human remains shall not be disturbed any further.

     (b) Notification. Local law enforcement officials, the Executive Director, and the Indian tribal governments shall be contacted immediately.

     (c) Inspection. The county coroner, or appropriate official, shall inspect the remains at the project site and determine if they are prehistoric/historic or modern. Representatives from the Indian tribal governments shall have an opportunity to monitor the inspection.

     (d) Jurisdiction. If the remains are modern, the appropriate law enforcement officials shall assume jurisdiction and the cultural resource protection process may conclude.

     (e) Treatment. In Oregon, prehistoric/historic remains of Native Americans shall generally be treated in accordance with the procedures set forth in ORS 97.740 to 97.760. In Washington, the procedures set forth in RCW 27.44 and 68.05 shall generally be implemented if the remains are prehistoric/historic.

     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" [350-81-540 (5)(a)].

     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" [350-81-540 (5)(c)] are met and the mitigation plan is executed.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-81-560. 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 Corps of Engineers Wetlands Delineation Manual (Wetlands Research Program Technical Report Y-87-1, on-line edition, updated through March 21, 1997).

     (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 Executive Director 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 Executive Director 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.

     (c) Determination of potential effects to significant natural resources shall include consideration of cumulative effects of proposed developments within wetlands and their buffer zones.

     (2) Commission Rule 350-81-560 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 350-81, backwaters and isolated water bodies created by roads and railroads are not part of the main stem of the Columbia River.

     (3) The following uses may be allowed in wetlands and wetlands buffer zones when approved pursuant to the provisions in 350-81-560(5), and reviewed under the applicable provisions of 350-81-520 through 350-81-620:

     (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, and

     (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 350-81-560 (2) and (3) may be allowed in wetlands and wetlands buffer zones, when approved pursuant to 350-81-560(6) and reviewed under the applicable provisions of 350-81-520 through 350-81-620.

     (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.

AMENDATORY SECTION

350-81-570. 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.

     (c) Determination of potential effects to significant natural resources shall include consideration of cumulative effects of proposed developments within streams, ponds, lakes, riparian areas and their buffer zones.

     (2) Commission Rule 350-81-570 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.

     (3) The following uses may be allowed in streams, ponds, lakes and riparian areas when approved pursuant 350-81-570(5), and reviewed under the applicable provisions of 350-81-520 through 350-81-620:

     (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 350-81-074, 350-81-570 (2) and (3) may be allowed in streams, ponds, lakes, and riparian areas, when approved pursuant to 350-81-570(6) and reviewed under the applicable provisions of 350-81-520 through 350-81-620.

     (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 350-81-560 (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 350-81-560 (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, 2000), unless otherwise coordinated with and approved by the Oregon Department of Fish and Wildlife. In Washington, the Washington Department of Fish and Wildlife 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 350-81-560 (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 Executive Director 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 Executive Director 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.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Columbia River Gorge Commission and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-81-580. 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:

     Bald eagle habitat

     Deer and elk winter range

     Elk habitat

     Mountain goat habitat

     Peregrine falcon habitat

     Pika colony area

     Pileated woodpecker habitat

     Pine marten habitat

     Shallow water fish habitat (Columbia R.)

     Special streams

     Special habitat area

     Spotted owl habitat

     Sturgeon spawning area

     Tributary fish habitat

     Turkey habitat

     Waterfowl area

     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, mountain goat, and prairie falcon).

     Updated lists of species included in sensitive wildlife sites can be found on the websites for the Washington Department of Fish and Wildlife (Species of Concern list) and the Wildlife Division of Oregon Department of Fish and Wildlife. A list also is maintained by the USDA Forest Service - Scenic Area Office and available on the Gorge Commission website.

     (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.

     (c) Determination of potential effects to significant natural resources shall include consideration of cumulative effects of proposed developments within 1000 feet of sensitive wildlife areas and sites.

     (2) 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 and other project related activities, except when all of their impacts will occur inside previously disturbed road, railroad or utility corridors, or existing developed utility sites, that are maintained annually.

     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.

     (3) Review uses may be allowed within 1,000 feet of a sensitive wildlife area or site, when approved pursuant to 350-81-580(4) and reviewed under the applicable provisions of 350-81-520 through 350-81-620.

     (4) 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 Fish and 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 Fish and Wildlife has prepared similar guidelines for a variety of species, including the western pond turtle, the peregrine 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 Executive Director, 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 Executive Director, 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 through mitigation measures recommended by the state wildlife biologist, or 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 Executive Director 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 Executive Director, 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.

     (f) The Executive Director shall submit a copy of all field surveys and wildlife management plans to Oregon Department of Fish and Wildlife or Washington Department of Fish and Wildlife. The state wildlife agency will have 20 days from the date that a field survey or management plan is mailed to submit written comments to the Executive Director.

     The Executive Director shall record and address any written comments submitted by the state wildlife agency in the land use review order.

     Based on the comments from the state wildlife agency, the Executive Director will make a final decision on whether the proposed use would be consistent with the wildlife policies and guidelines. If the final decision contradicts the comments submitted by the state wildlife agency, the Executive Director shall justify how the opposing conclusion was reached.

     The Executive Director shall require the applicant to revise the wildlife management plan as necessary to ensure that the proposed use would not adversely affect a sensitive wildlife area or site.

     (5) Wildlife Management Plans

     Wildlife management plans shall be prepared when a proposed use is likely to adversely affect a sensitive wildlife area or site. Their primary purpose is to document the special characteristics of a project site and the habitat requirements of affected wildlife species. This information provides a basis for the project applicant to redesign the proposed use in a manner that protects sensitive wildlife areas and sites, maximizes his/her development options, and mitigates temporary impacts to the wildlife area or site and/or buffer zone.

     Wildlife management plans shall meet the following guidelines:

     (a) Wildlife management plans shall be prepared by a professional wildlife biologist hired by the project applicant.

     (b) All relevant background information shall be documented and considered, including biology of the affected species, published protection and management guidelines, physical characteristics of the subject parcel, past and present use of the subject parcel, and useful life of the wildlife area or site.

     (c) The core habitat of the sensitive wildlife species shall be delineated. It shall encompass the sensitive wildlife area or site and the attributes, or key components, that are essential to maintain the long-term use and integrity of the wildlife area or site.

     (d) A wildlife buffer zone shall be employed. It shall be wide enough to ensure that the core habitat is not adversely affected by new uses, or natural forces, such as fire and wind. Buffer zones shall be delineated on the site plan map and shall reflect the physical characteristics of the project site and the biology of the affected species.

     (e) The size, scope, configuration, or density of new uses within the core habitat and the wildlife buffer zone shall be regulated to protect sensitive wildlife species. The timing and duration of all uses shall also be regulated to ensure that they do not occur during the time of the year when wildlife species are sensitive to disturbance. The following shall apply:

     (A) New uses shall generally be prohibited within the core habitat. Exceptions may include uses that have temporary and negligible effects, such as the installation of minor underground utilities or the maintenance of existing structures. Low intensity, non-destructive uses may be conditionally authorized in the core habitat.

     (B) Intensive uses shall be generally prohibited in wildlife buffer zones. Such uses may be conditionally authorized when a wildlife area or site is inhabited seasonally, provided they will have only temporary effects on the wildlife buffer zone and rehabilitation and/or enhancement will be completed before a particular species returns.

     (f) Rehabilitation and/or enhancement shall be required when new uses are authorized within wildlife buffer zones. When a buffer zone has been altered or degraded in the past, it shall be rehabilitated to its natural condition to the maximum extent practicable. When complete rehabilitation is not possible, such as when new structures permanently displace wildlife habitat, enhancement shall also be required. Enhancement shall achieve a no net loss of the integrity of the wildlife area or site.

     Rehabilitation and enhancement actions shall be documented in the wildlife management plan and shall include a map and text.

     (g) The applicant shall prepare and implement a 3-year monitoring plan when the affected wildlife area or site is occupied by a species that is listed as endangered or threatened pursuant to federal or state wildlife lists. It shall include an annual report and shall track the status of the wildlife area or site and the success of rehabilitation and/or enhancement actions.

     At the end of 3 years, rehabilitation and enhancement efforts may conclude if they are successful. In instances where rehabilitation and enhancement efforts have failed, the monitoring process shall be extended until the applicant satisfies the rehabilitation and enhancement guidelines.

     (6) New fences in deer and elk winter range

     (a) New fences in deer and elk winter range shall be allowed only when necessary to control livestock or exclude wildlife from specified areas, such as gardens or sensitive wildlife sites. The areas fenced shall be the minimum necessary to meet the immediate needs of the project applicant.

     (b) New and replacement fences that are allowed in winter range shall comply with the guidelines in Specifications for Structural Range Improvements (Sanderson, et. al. 1990), as summarized below, unless the applicant demonstrates the need for an alternative design:

     (A) To make it easier for deer to jump over the fence, the top wire shall not be more than 42 inches high.

     (B) The distance between the top two wires is critical for adult deer because their hind legs often become entangled between these wires. A gap of at least 10 inches shall be maintained between the top two wires to make it easier for deer to free themselves if they become entangled.

     (C) The bottom wire shall be at least 16 inches above the ground to allow fawns to crawl under the fence. It should consist of smooth wire because barbs often injure animals as they crawl under fences.

     (D) Stays, or braces placed between strands of wire, shall be positioned between fences posts where deer are most likely to cross. Stays create a more rigid fence, which allows deer a better chance to wiggle free if their hind legs become caught between the top two wires.

     (c) Woven wire fences may be authorized only when it is clearly demonstrated that such a fence is required to meet specific and immediate needs, such as controlling hogs and sheep.

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Columbia River Gorge Commission and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION

350-81-590. General Management Areas Rare Plant Review Criteria.

     (1) Sensitive Plants and Site Plans for Review Uses Near Sensitive Plants

     (a) Proposed uses shall not adversely affect sensitive plants. "Sensitive plants" means plant species that are

     (A) endemic to the Columbia River Gorge and vicinity,

     (B) listed as endangered or threatened pursuant to federal or state endangered species acts, or

     (C) listed as endangered, threatened, or sensitive by the Oregon or Washington Natural Heritage program.

     Updated lists of sensitive plant species can be found on the websites for the Oregon or Washington Natural Heritage Program. A list also is maintained by the USDA Forest Service - Scenic Area Office and available on the Gorge Commission website.

     (b) In addition to the information required in all site plans, site plans for uses within 1,000 feet of a sensitive plant shall include a map prepared at a scale of 1 inch equals 100 feet (1:1,200), or a scale providing greater detail.

     (c) Determination of potential effects to significant natural resources shall include consideration of cumulative effects of proposed developments¹ within 1000 feet of rare plants.

     (2) Field Survey

     A field survey to identify sensitive plants 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 and other project related activities, except when all of their impacts will occur inside previously disturbed road, railroad or utility corridors, or existing developed utility sites, that are maintained annually.

     Field surveys shall cover all areas affected by the proposed use or recreation facility. They shall be conducted by a person with recognized expertise in botany or plant ecology hired by the project applicant. Field surveys shall identify the precise location of the sensitive plants and delineate a 200-foot buffer zone. The results of a field survey shall be shown on the site plan map.

     (3) Review uses may be allowed within 1,000 feet of a sensitive plant, when approved pursuant to 350-81-590(4), and reviewed under the applicable provisions of 350-81-520 through 350-81-620.

     (4) Uses that are proposed within 1,000 feet of a sensitive plant shall be reviewed as follows:

     (a) Site plans shall be submitted to the Oregon or Washington Natural Heritage Program by the Executive Director. The Natural Heritage Program staff will review the site plan and their field survey records. They will identify the precise location of the affected plants and delineate a 200-foot buffer zone on the project applicant's site plan.

     If the field survey records of the state heritage program are inadequate, the project applicant shall hire a person with recognized expertise in botany or plant ecology to ascertain the precise location of the affected plants.

     (b) The rare plant protection process may conclude if the Executive Director, in consultation with the Natural Heritage Program staff, determines that the proposed use would be located outside of a sensitive plant buffer zone.

     (c) New uses shall be prohibited within sensitive plant species buffer zones.

     (d) If a proposed use must be allowed within a sensitive plant buffer area in accordance with 350-81-078, the project applicant shall prepare a protection and rehabilitation plan pursuant to 350-81-590(5).

     (e) The Executive Director shall submit a copy of all field surveys and protection and rehabilitation plans to the Oregon or Washington Natural Heritage Program. The Natural Heritage Program staff will have 20 days from the date that a field survey is mailed to submit written comments to the Executive Director. The Executive Director shall record and address any written comments submitted by the Natural Heritage Program staff in the land use review order.

     Based on the comments from the Natural Heritage Program staff, the Executive Director will make a final decision on whether the proposed use would be consistent with the rare plant policies and guidelines. If the final decision contradicts the comments submitted by the Natural Heritage Program staff, the Executive Director shall justify how the opposing conclusion was reached.

     (5) Protection and Rehabilitation Plans

     Protection and rehabilitation plans shall minimize and offset unavoidable impacts that result from a new use that occurs within a sensitive plant buffer zone as the result of a variance.

     Protection and rehabilitation plans shall meet the following guidelines:

     (a) Protection and rehabilitation plans shall be prepared by a professional botanist or plant ecologist hired by the project applicant.

     (b) Construction, protection, and rehabilitation activities shall occur during the time of the year when ground disturbance will be minimized and protection, rehabilitation, and replacement efforts will be maximized.

     (c) Sensitive plants that will be destroyed shall be transplanted or replaced, to the maximum extent practicable. Replacement is used here to mean the establishment of a particular plant species in areas of suitable habitat not affected by new uses. Replacement may be accomplished by seeds, cuttings, or other appropriate methods.

     Replacement shall occur as close to the original plant site as practicable. The project applicant shall ensure that at least 75 percent of the replacement plants survive 3 years after the date they are planted.

     (d) Sensitive plants and their surrounding habitat that will not be altered or destroyed shall be protected and maintained. Appropriate protection and maintenance techniques shall be applied, such as fencing, conservation easements, livestock management, and noxious weed control.

     (e) Habitat of a sensitive plant that will be affected by temporary uses shall be rehabilitated to a natural condition.

     (f) Protection efforts shall be implemented before construction activities begin. Rehabilitation efforts shall be implemented immediately after the plants and their surrounding habitat are disturbed.

     (g) Protection and rehabilitation plans shall include maps, photographs, and text. The text shall:

     (A) Describe the biology of sensitive plant species that will be affected by a proposed use.

     (B) Explain the techniques that will be used to protect sensitive plants and their surrounding habitat that will not be altered or destroyed.

     (C) Describe the rehabilitation and enhancement actions that will minimize and offset the impacts that will result from a proposed use.

     (D) Include a 3-year monitoring, maintenance, and replacement program. The project applicant shall prepare and submit to the Executive Director an annual report that documents milestones, successes, problems, and contingency actions.

     (6) Sensitive Plant Buffer Zones

     (a) A 200-foot buffer zone shall be maintained around sensitive plants. Buffer areas shall remain in an undisturbed, natural condition.

     (b) Buffer zones may be reduced if a project applicant demonstrates that intervening topography, vegetation, man-made features, or natural plant habitat boundaries negate the need for a 200 foot radius. Under no circumstances shall the buffer zone be less than 25 feet.

     (c) Requests to reduce buffer areas shall be considered if a professional botanist or plant ecologist hired by the project applicant:

     (A) Identifies the precise location of the sensitive plants,

     (B) Describes the biology of the sensitive plants, and

     (C) Demonstrates that the proposed use will not have any negative effects, either direct or indirect, on the affected plants and the surrounding habitat that is vital to their long-term survival.

     All requests shall be prepared as a written report. Published literature regarding the biology of the affected plants and recommendations regarding their protection and management shall be cited. The report shall include detailed maps and photographs.

     (d) The Executive Director shall submit all requests to reduce sensitive plant species buffer areas to the Oregon or Washington Natural Heritage Program. The Natural Heritage Program staff will have 20 days from the date that such a request is mailed to submit written comments to the Executive Director.

     The Executive Director shall record and address any written comments submitted by the Oregon or Washington Natural Heritage Program in the development review order.

     Based on the comments from the Oregon or Washington Natural Heritage Program, the Executive Director will make a final decision on whether the reduced buffer area is justified. If the final decision contradicts the comments submitted by the Natural Heritage Program staff, the Executive Director shall justify how the opposing conclusion was reached.

¹ The Notice of Rulemaking contained the words, "within sites" at this point in the text. These words are a typo, and staff does not show them for the final proposed rule.

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