Chapter 442 Oregon Laws 2001

AN ACT

SB 51

Relating to water quality management plan; creating new provisions; and amending ORS 568.912, 568.915, 568.921 and 568.933.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 568.912 is amended to read:

568.912. (1) The State Department of Agriculture in consultation with the State Board of Agriculture may adopt rules necessary to effectuate a water quality management plan initiated under ORS 568.909.

(2) The department may require any landowner whose land is located within an area subject to a water quality management plan to perform those actions on the landowner’s land necessary to carry out a water quality management plan. Such actions may include:

[(a) Routine construction, maintenance and clearance of any works and facility;]

(a) Construction or maintenance of any works or facilities;

(b) Agricultural and cropping practices; or

(c) Any other measure or avoidance necessary for the prevention or control of water pollution of the waters of the state.

(3) No specific practice may be prohibited under this section unless the department has a scientific basis for concluding that the practice is a factor in causing water quality standards to be exceeded.

(4) A landowner subject to the requirements of a plan may appeal specific actions required of that landowner by the department to carry out a plan. The department shall establish by rule a procedure and criteria for the appeal process.

SECTION 2. ORS 568.915 is amended to read:

568.915. (1) After making a reasonable attempt to notify the landowner, the State Department of Agriculture or a designee of the department may [go upon] enter any lands within the area subject to a water quality management plan for the purpose of determining:

(a) Those actions that may be required of landowners under ORS 568.900 to 568.933; and

(b) Whether the landowner is carrying out the required actions.

(2) The State Department of Agriculture, or a designee of the State Department of Agriculture, shall periodically, and in no event less than once biennially, consult with the Department of Justice to ensure that the actions of the State Department of Agriculture taken under this section are consistent with section 9, Article I of the Oregon Constitution, and the Fourth Amendment to the United States Constitution.

[(2)] (3) Prior to general initiation of inspections in an agricultural water quality management area for compliance with a water quality management plan adopted under ORS 568.912, the department shall implement a process to notify the affected landowners within the boundaries of the area that the landowners are subject to the requirements of the plan.

SECTION 3. The amendments to ORS 568.915 by section 2 of this 2001 Act apply to searches conducted by the State Department of Agriculture on or after the effective date of this 2001 Act.

SECTION 4. ORS 568.933 is amended to read:

568.933. (1) In addition to any other liability or penalty provided by law, the State Department of Agriculture may impose a civil penalty on a landowner in an agricultural or rural area subject to a water quality management plan for failure to comply with the requirements of the plan including rules to implement the plan.

[(a) The civil penalty for the first violation shall not exceed $2,500. Upon a second violation, the department may impose a civil penalty of not more than $10,000.]

[(b) For the purposes of this section, each day of violation continuing after the period of time for correction set by the department shall be considered a separate violation unless the department finds that a different period of time is more appropriate to describe a specific violation event.]

[(2) A civil penalty may not be imposed for the first violation under this section unless the department has notified the person of the violation and prescribed a reasonable time for the elimination of the violation:]

[(a) Not to exceed 30 days after the first notice of a violation; or]

[(b) If the violation requires more than 30 days to correct, the period of time specified in a plan of correction found acceptable to the department.]

(2) The department may not impose a civil penalty on a landowner for a first violation under this section unless the department:

(a) Has notified the landowner of the violation in a writing that describes, with reasonable specificity, the factual basis for the department’s determination that a violation has occurred; and

(b) Has prescribed a reasonable time for the landowner to correct the violation that may not exceed 30 days after the first notice of a violation, unless the violation requires more than 30 days to correct, in which case the department shall specify a reasonable period of time to correct the violation in a plan of correction issued to the landowner.

(3) A civil penalty imposed under this section may not exceed:

(a) $2,500 for a first violation; or

(b) $10,000 for a second or subsequent violation.

(4) For purposes of this section, each day of a violation continuing after any period of time of correction set by the department is a separate violation unless the department finds that a different period of time is more appropriate to describe a specific violation event.

[(3)] (5) The [person] landowner to whom [the notice] a notice of violation or a notice of civil penalty is addressed shall have [10] 30 days from the date of receipt of the notice in which to make written application for a hearing before the department.

[(4)] (6) In imposing a penalty under this section, the department shall consider the following factors:

(a) The past history of the [person] landowner incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct a violation.

(b) Any prior violations of rules, regulations or statutes pertaining to a water quality management plan.

(d) Whether the violation was repeated or continuous.

(e) Whether the cause of the violation was an unavoidable accident, negligence or an intentional act.

(f) The violator’s efforts to correct the violation.

(g) The immediacy and extent to which the violation threatens the public health or safety.

[(5)] (7) No notice of violation or period to comply shall be required under subsection (2) of this section if:

(a) The violation is intentional; or

(b) The landowner has received a previous notice of the same or similar violation.

[(6)] (8) Any civil penalty recovered under this section shall be deposited into a special subaccount in the Department of Agriculture Service Fund. Moneys in the subaccount are continuously appropriated to the department to be used for educational programs on water quality management and to provide funding for water quality management demonstration projects.

SECTION 5. The amendments to ORS 568.933 by section 4 of this 2001 Act apply to penalties imposed on or after the effective date of this 2001 Act.

SECTION 6. ORS 568.921 is amended to read:

568.921. The State Department of Agriculture, in consultation with the State Board of Agriculture, may establish and collect fees from landowners subject to the requirements of a water quality management plan adopted under ORS 568.909. The fees shall not exceed the total cost of developing and carrying out the plan and shall not exceed $200 annually per landowner. Fees established by the department under this section are subject to the requirements of ORS 291.055. Any fees received by the department pursuant to this section shall be deposited in the State Treasury to the credit of the Department of Agriculture Service Fund. Such moneys are continuously appropriated to the department for the purpose of implementing ORS 568.900 to 568.933.

SECTION 7. The amendments to ORS 568.921 by section 6 of this 2001 Act apply to fees established on or after the effective date of this 2001 Act.

Approved by the Governor June 19, 2001

Filed in the office of Secretary of State June 19, 2001

Effective date January 1, 2002

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