Chapter 594 Oregon Laws 2001

AN ACT

SB 208

Relating to water quality management plans; amending ORS 568.909, 568.912, 568.915, 568.918, 568.921, 568.930 and 568.933.

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

SECTION 1. ORS 568.909 is amended to read:

568.909. (1) The State Department of Agriculture may describe the boundaries of agricultural and rural lands that are subject to a water quality management plan:

(a) Due to a determination by the Environmental Quality Commission to establish a Total Maximum Daily Load for a body of water under the federal Water Pollution Control Act (33 U.S.C. 1313);

(b) Due to a declaration of a ground water management area under ORS 468B.180; or

(2) For an area whose boundaries have been designated under this section, the department shall develop and carry out a water quality management plan for the prevention and control of water pollution from agricultural activities and soil erosion. The department shall base the plan [shall be based] and rules adopted to implement the plan upon scientific information.

SECTION 2. 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] implement a water quality management plan initiated under ORS 568.909. The rules adopted under this subsection shall constitute the only enforceable aspects of a water quality management plan.

(2) Pursuant to rules adopted under subsection (1) of this section, 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] prevent and control water pollution from agricultural activities and soil erosion. Such actions may include:

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

(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] rules adopted to implement 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 3. 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 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 or rules adopted under ORS 568.912; and

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

(2) Prior to general initiation of inspections in an agricultural water quality management area for compliance with [a water quality management plan] rules 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] of any requirements that may by rule apply to landowners in the area.

SECTION 4. ORS 568.918 is amended to read:

568.918. Upon finding that a landowner in an area subject to a water quality management plan has failed to perform actions required by the [plan] rules adopted under ORS 568.912, the State Department of Agriculture shall notify the landowner and direct the landowner to perform the work or take any other actions necessary to bring the condition of the subject lands into compliance with the [plan] rules within a reasonable period of time. In all cases, the legal owner of the property shall also be notified, prior to the assessment of any civil penalty.

SECTION 5. 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. 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 6. ORS 568.930 is amended to read:

568.930. (1) Landowners shall conduct all agricultural activities [conducted] on agricultural lands within the boundaries of an area subject to a water quality management plan [shall be conducted] in full compliance with the [plan and] rules implementing the plan and with all the rules and standards of the Environmental Quality Commission relating to water pollution control. In addition to any other remedy provided by law, any violation of those rules or standards shall be subject to all remedies and sanctions available to the Department of Environmental Quality or the Environmental Quality Commission.

[(2) Any civil penalty imposed under ORS 568.933 shall be reduced by the amount of any civil penalty imposed by the Environmental Quality Commission or the Department of Environmental Quality for violations of water quality rules or standards, if the latter penalties are imposed on the same person and are based on the same violation.]

[(3)] (2) The State Department of Agriculture and the State Board of Agriculture shall consult with the Department of Environmental Quality or the Environmental Quality Commission in the adoption and review of water quality management plans and in the adoption of rules to implement the plans.

[(4)(a)] (3)(a) The Environmental Quality Commission may petition the State Department of Agriculture for a review of part or all of any water quality management plan and rules implementing the plan. The petition must allege with reasonable specificity that the [plan or its content is] plan or the rules are not adequate to achieve compliance with applicable state and federal water quality standards.

(b) The State Department of Agriculture, in consultation with the State Board of Agriculture, shall complete its review of a petition submitted under paragraph (a) of this subsection within 90 days of the date of the filing of the petition for review. The State Department of Agriculture [shall] may not terminate the review without the concurrence of the Environmental Quality Commission unless the department initiates revisions to the rules implementing the water quality management plan that address the issues raised by the Environmental Quality Commission. If the State Department of Agriculture adopts any revisions [adopted] in response to a petition by the Environmental Quality Commission,[shall be adopted] the department shall adopt the revisions not later than two years from the date the Environmental Quality Commission submits the petition, unless the [State] department [of Agriculture], with the concurrence of the Environmental Quality Commission, finds that special circumstances require additional time.

[(5)] (4) A water quality management plan and rules implementing the plan that pertain to a ground water management area shall be subject to the coordination requirements of ORS 468B.162.

SECTION 7. 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] of lands within 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] implementing 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.

(3) The person to whom the notice is addressed shall have 10 days from the date of receipt of the notice in which to make written application for a hearing before the department.

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

(a) The past history of the person 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) [No] A notice of violation or period to comply shall not 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) The department shall deposit 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.

(7) The State Department of Agriculture shall reduce the amount of any civil penalty imposed under this section by the amount of any civil penalty imposed by the Environmental Quality Commission or the Department of Environmental Quality for violations of water quality rules or standards, if the latter penalty is imposed on the same person and is based on the same violation.

Approved by the Governor June 25, 2001

Filed in the office of Secretary of State June 25, 2001

Effective date January 1, 2002

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