or 196.800 to 196.921.

196.655 or 196.800 to 196.921.

����� (5) Disburse funds received under the federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for such purposes as specifically stipulated in a grant award.

����� (6) Receive funds under the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the voluntary acquisition of wetlands and interests therein according to the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan. Funds received under the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, shall be used for nonmitigation complementary purposes and programs of ORS 196.600 to 196.655. [Formerly 541.557; 1993 c.18 �36; 2003 c.738 �5; 2009 c.343 �3]

����� 196.615 Program for mitigation banks; program standards and criteria; rules. (1) In accordance with the provisions of ORS 196.600 to 196.655, upon the approval of the State Land Board, the Director of the Department of State Lands shall initiate and implement a program for mitigation banks. The director shall encourage the development of and the expeditious approval of mitigation banks and other types of compensatory mitigation.

����� (2) Subject to the approval of the State Land Board, the Department of State Lands shall adopt, by rule, standards and criteria for the site selection process, operation and evaluation of mitigation banks. Criteria to be considered shall include but need not be limited to:

����� (a) Historical trends relating to the waters of this state, including the estimated rate of current and future losses of the respective types of waters of this state.

����� (b) The contributions of the waters of this state to:

����� (A) Wildlife, migratory birds and resident species;

����� (B) Commercial and sport fisheries;

����� (C) Surface and ground water quality and quantity, and flood moderation;

����� (D) Outdoor recreation including enhancement of scenic waterways; and

����� (E) Scientific and research values.

����� (c) Regional economic needs.

����� (3) The rules adopted by the department under this section must also include:

����� (a) Guidelines for the use of mitigation banks to compensate for adverse effects of project development or to resolve violations of ORS 196.800 to 196.921 related to waters of this state; and

����� (b) Guidelines for allowing a permittee or third party to create a mitigation bank or to conduct compensatory mitigation in order to create, restore, enhance or preserve water resources of this state.

����� (4) For each mitigation bank, the department shall establish a well-defined plan, including preliminary objectives, inventory of resource values and an evaluation and monitoring program. [Formerly 541.560; 1991 c.67 �48; 2003 c.738 �6; 2009 c.343 �4]

����� 196.620 Resource values and credits for mitigation banks; use and withdrawal of credits; annual evaluation of system by director. (1) For each mitigation bank, the Department of State Lands shall establish a system of resource values and credits.

����� (2) A credit from a mitigation bank may be withdrawn for a condition imposed on a permit in accordance with ORS 196.825 (5), for any other authorization issued in accordance with ORS 196.800 to 196.921 or to resolve a violation of ORS 196.800 to 196.921. At the request of a mitigation bank sponsor, the Director of the Department of State Lands may authorize the withdrawal of mitigation bank credits by a public benefit corporation as defined in ORS 65.001 or a public body as defined by ORS 174.109 designated by the director for the purpose of reserving credits for future use in accordance with this subsection. The director shall manage such transactions to ensure that each credit is used no more than one time to satisfy a use in accordance with this section.

����� (3) Credits from a mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the service area of the mitigation bank, consistent with the mitigation bank instrument, unless the director determines that it is environmentally preferable to exceed this limitation.

����� (4) Credits from an estuarine mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the same estuarine ecological system unless the director determines that it is environmentally preferable to exceed this limitation.

����� (5) The director may not withdraw any credits from any mitigation bank until the director has:

����� (a) Taken actions sufficient to establish hydrological function of the mitigation bank site;

����� (b) Conducted other creation, restoration, enhancement or preservation actions to establish other functions and values at the mitigation bank site; and

����� (c) Evaluated the results of the actions and determined that a high probability exists that the functions and values of the mitigation bank site are equal to or greater than the functions and values of the area to be impacted or that the functions and values of the mitigation bank compensate for unavoidable adverse effects on the waters of this state due to the activities otherwise allowed under ORS 196.600 to 196.921.

����� (6) The price for any mitigation credit shall be set at an amount that will compensate the state for all of the costs and expenses the state has incurred and is expected to incur in establishing and maintaining that portion of the mitigation bank.

����� (7) The director shall not consider the availability or nonavailability of mitigation bank credits in deciding whether to grant or deny any removal or fill permit under ORS 196.600 to 196.921.

����� (8) The director annually shall:

����� (a) Evaluate the functions and values created within each mitigation bank site; and

����� (b) Compare the current functions and values with those that the director anticipated that the mitigation bank would provide. If the director finds any significant disparity between the actual and anticipated functions and values, the director shall:

����� (A) Suspend the withdrawal of credits to that mitigation site; or

����� (B) Take prompt action to ensure that the anticipated functions and values are established.

����� (9) The director may not withdraw credits from the mitigation bank for a specific permit, authorization or resolution of a violation if the director determines that:

����� (a) The credits for that specific permit, authorization or resolution of a violation would not adequately maintain habitat or species diversity;

����� (b) The mitigation bank site for which credits are proposed to be withdrawn is not sufficiently similar in functions and values to the area to be impacted; or

����� (c) The functions and values of the mitigation bank do not compensate for unavoidable adverse effects on the waters of this state due to the activities otherwise allowed under ORS 196.600 to 196.921. [Formerly 541.565; 1997 c.444 �3; 2003 c.738 �7; 2005 c.22 �135; 2007 c.804 �70; 2007 c.849 �10; 2009 c.343 �5; 2011 c.370 �2]

����� 196.623 Watershed enhancement project as mitigation bank; sale of mitigation credit. (1) The Department of State Lands may approve a watershed enhancement program and certify the project as a mitigation bank under ORS 196.600 to 196.655 if the watershed enhancement program complies with the rules adopted by the department under ORS 196.615 for certification of a program as a mitigation bank.

����� (2) A person, state agency, federal agency, federally recognized Indian tribe, watershed council or political subdivision in this state that owns land upon which is located a watershed enhancement program that qualifies as a mitigation bank under subsection (1) of this section may sell mitigation credit from the mitigation bank subject to ORS 196.600 to 196.655 and the rules of the Department of State Lands adopted under ORS 196.600 to 196.655. [1997 c.444 �2; 2009 c.343 �6]

����� 196.625 Fill and removal activities in mitigation banks; reports. (1) The Director of the Department of State Lands shall maintain a record of fill and removal activities and actions for each mitigation bank implemented and conduct monitoring of mitigation banks with moneys from the Oregon Removal-Fill Mitigation Fund.

����� (2) The director shall provide annual reports to the State Land Board on moneys spent and received for each mitigation bank. [Formerly 541.567; 2003 c.738 �8; 2009 c.343 �7]

����� 196.630 Rules. Subject to the approval of the State Land Board, the Director of the Department of State Lands shall adopt rules according to the provisions of ORS chapter 183 to carry out the provisions of ORS 196.600 to 196.655. [Formerly 541.570]

����� 196.635 Director to consult and cooperate with other agencies and interested parties. (1) The provisions of ORS 196.600 to 196.655 shall be carried out by the Director of the Department of State Lands. The Department of State Lands shall solicit, but not be bound by, comments from the State Department of Fish and Wildlife, Department of Transportation, Department of Land Conservation and Development, Department of Environmental Quality, Oregon Business Development Department, federal natural resources and regulatory agencies, affected local governments and special districts, conservation organizations and other interested parties. All comments shall be in writing and provided to the Department of State Lands and mitigation bank sponsor within 30 days of solicitation by the Department of State Lands. If comments are not received by the Department of State Lands from a state agency or from an affected local government or special district within 30 days of solicitation, the director shall assume that the state agency, local government or special district does not desire to provide comments.

����� (2) In cooperation with the parties in subsection (1) of this section, the director, in consultation with the State Land Board, shall:

����� (a) Review opportunities for inclusion of appropriate wetlands in the Statewide Comprehensive Outdoor Recreation Plan.

����� (b) Develop and recommend a wetlands priority plan for inclusion in the Statewide Comprehensive Outdoor Recreation Plan. The wetlands priority plan shall be complementary to the purposes and programs under ORS 196.600 to 196.655.

����� (3) The director shall confer with the Oregon Watershed Enhancement Board to develop criteria to certify watershed enhancement projects as mitigation banks. [Formerly 541.575; 1997 c.444 �4; 2003 c.738 �9]

����� 196.640 Oregon Removal-Fill Mitigation Fund; rules. (1) The Oregon Removal-Fill Mitigation Fund is established, separate and distinct from the General Fund. All moneys received under ORS 196.645 shall be paid into the State Treasury and credited to the Oregon Removal-Fill Mitigation Fund. All moneys in the fund are appropriated continuously to the Department of State Lands to be used by the department as set forth in ORS 196.650. The moneys in the fund may be invested and reinvested as provided in ORS 293.701 to