71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2156
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber,
M.D., for State Department of Agriculture)
CHAPTER ................
AN ACT
Relating to confined animal feeding operations; creating new
provisions; amending ORS 468B.035, 468B.050, 468B.205,
468B.215, 468B.225, 468B.230, 537.141, 537.545 and 561.175;
repealing ORS 468B.223 and 468B.227; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) The State Department of Agriculture and the
Department of Environmental Quality are directed to pursue United
States Environmental Protection Agency approval of the transfer
of the permitting program implemented pursuant to 33 U.S.C. 1342,
as it relates to confined animal feeding operations, from the
Department of Environmental Quality to the State Department of
Agriculture.
(2) The State Department of Agriculture is directed to assume
all permitting and enforcement responsibilities for confined
animal feeding operations at such time as the United States
Environmental Protection Agency approves the transfer.
(3) In order to encourage the assumption of all permitting and
enforcement responsibilities for confined animal feeding
operations by the State Department of Agriculture, the Department
of Environmental Quality and the State Department of Agriculture
shall notify the United States Environmental Protection Agency of
the completion of the interagency agreements and administrative
procedures necessary for the transfer of the permitting program
to the State Department of Agriculture.
(4) If the State Department of Agriculture assumes all
permitting and enforcement responsibilities for confined animal
feeding operations, the State Department of Agriculture shall, to
the extent that funds are available for the creation and
implementation of an educational program, inform and familiarize
operators of confined animal feeding operations with any new
administrative rules or related regulatory programs implemented
as a result of the assumption. + }
SECTION 2. { + The State Department of Agriculture shall
inform the President of the Senate, the Speaker of the House of
Representatives and the Legislative Counsel Committee of the
assumption of permitting and enforcement responsibilities for
confined animal feeding operations pursuant to section 1 of this
2001 Act at the time the United States Environmental Protection
Agency approves the transfer. + }
Enrolled House Bill 2156 (HB 2156-B) Page 1
SECTION 3. ORS 468B.035 is amended to read:
468B.035. { + (1) + }The Environmental Quality Commission may
perform or cause to be performed any { - and all - } acts
necessary to be performed by the state to implement within the
jurisdiction of the state the provisions of the Federal Water
Pollution Control Act, { - enacted by Congress, October 18,
1972, and Acts amendatory thereof or supplementary thereto, - }
{ + P.L. 92-500, as amended, + } and federal regulations
{ - and - } { + or + } guidelines issued pursuant
{ - thereto - } { + to the Act + }. The commission may adopt,
modify or repeal rules, pursuant to ORS 183.310 to 183.550, for
the administration and implementation { - of this section - }
{ + of this subsection + }.
{ + (2) The State Department of Agriculture may perform or
cause to be performed any acts necessary to be performed by the
state to implement the provisions of the Federal Water Pollution
Control Act, P.L. 92-500, as amended, and any federal regulations
or guidelines issued pursuant to the Act, relating to the control
and prevention of water pollution from livestock and other
animal-based agricultural operations. The department may adopt
rules pursuant to ORS 183.310 to 183.550 for the administration
and implementation of this subsection. + }
SECTION 4. ORS 468B.050 is amended to read:
468B.050. (1) Except as provided in ORS 468B.053 or 468B.215,
without first obtaining a permit from the Director of the
Department of Environmental Quality { + or the State Department
of Agriculture + }, which permit shall specify applicable
effluent limitations, no person shall:
(a) Discharge any wastes into the waters of the state from any
industrial or commercial establishment or activity or any
disposal system.
(b) Construct, install, modify or operate any disposal system
or part thereof or any extension or addition thereto.
(c) Increase in volume or strength any wastes in excess of the
permissive discharges specified under an existing permit.
(d) Construct, install, operate or conduct any industrial,
commercial, confined animal feeding operation or other
establishment or activity or any extension or modification
thereof or addition thereto, the operation or conduct of which
would cause an increase in the discharge of wastes into the
waters of the state or which would otherwise alter the physical,
chemical or biological properties of any waters of the state in
any manner not already lawfully authorized.
(e) Construct or use any new outlet for the discharge of any
wastes into the waters of the state.
(2) As used in this section, 'confined animal feeding
operation' has the meaning given { - in ORS 468B.205 - } { +
that term in rules adopted by the State Department of Agriculture
or the Department of Environmental Quality + }.
SECTION 5. { + Section 6 of this 2001 Act is added to and made
a part of ORS 468B.200 to 468B.230. + }
SECTION 6. { + The provisions of ORS 468B.200 to 468B.230
apply to animal feeding operations regulated under 33 U.S.C. 1342
only to the extent that the operation of the provisions of ORS
468B.200 to 468B.230 are consisted with federal law, regulations
or guidelines issued pursuant to the Federal Water Pollution
Control Act, P.L. 92-500, as amended. + }
SECTION 7. ORS 468B.205 is amended to read:
468B.205. { + (1) + } As used in ORS 468B.200 to 468B.230,
'confined animal feeding operation' { - means the concentrated
Enrolled House Bill 2156 (HB 2156-B) Page 2
confined feeding or holding of animals or poultry, including, but
not limited to horse, cattle, sheep or swine feeding areas, dairy
confinement areas, slaughterhouse or shipping terminal holding
pens, poultry and egg production facilities and fur farms, in
buildings or in pens or lots where the surface has been prepared
with concrete, rock or fibrous material to support animals in wet
weather or which have waste water treatment works - } { + has
the meaning given that term in rules adopted by the State
Department of Agriculture or the Department of Environmental
Quality. The definition must distinguish between various
categories of animal feeding operations, including but not
limited to those animal feeding operations that are subject to
regulation under 33 U.S.C. 1342.
(2) A rule implementing ORS 468B.200 to 468B.230 may not be
adopted using the procedures provided in ORS 183.337 for agency
adoption of federal rules + }.
SECTION 8. ORS 468B.215 is amended to read:
468B.215. (1) Any person operating a confined animal feeding
operation shall pay a fee established under ORS 561.175.
(2) { + Except for an animal feeding operation subject to
regulation under 33 U.S.C. 1342, + }a fee shall not be assessed
to nor a permit required { + under ORS 468B.050 (1)(d) + } of
confined animal feeding operations of four months or less
duration or that do not have waste water control facilities. A
confined animal feeding operation { - in this category shall
be - } { + of four months or less duration or that does not
have waste water control facilities is + } subject to all
requirements of ORS chapters 468, 468A and 468B if found to be
discharging wastes into the waters of the state
{ - without a permit or in violation of a permit - } .
{ - (3) In order to recover costs associated with increased
monitoring and inspection, for the three years after a confined
animal feeding operation owner or operator is assessed a civil
penalty for violation of any provisions of ORS chapters 468, 468A
and 468B, any rule adopted under ORS chapter 468, 468A and 468B
or any permit condition, the owner or operator shall pay an
annual inspection fee of $1,000 rather than the fee established
under ORS 561.175 and shall have an annual inspection for each of
the three years. An owner or operator shall be considered to have
been assessed a civil penalty only if the penalty has been
adjudicated pursuant to ORS 468.135. - }
{ - (4) - } { + (3) + } The Department of Environmental
Quality { + or the State Department of Agriculture + } may
impose on the permit required for a confined animal feeding
operation only those conditions necessary to { - assure - }
{ + ensure + } that wastes are disposed of in a manner that does
not cause pollution of the surface and ground waters of the
state.
{ - (5) - } { + (4) + } A permit for a confined animal
feeding operation
{ - shall not expire, but - } may be revoked or modified by
the
{ - Director of the - } Department of Environmental Quality
{ + or the State Department of Agriculture + } or may be
terminated upon request by the permit holder. { - Each confined
animal feeding operation under permit may be inspected by the
State Department of Agriculture. - } { + An animal feeding
operation may be inspected for compliance with water quality laws
and regulations by the Department of Environmental Quality or the
State Department of Agriculture. + }
Enrolled House Bill 2156 (HB 2156-B) Page 3
SECTION 9. ORS 468B.225 is amended to read:
468B.225. (1) Prior to conducting an investigation of { - a
confined - } { + an + } animal feeding operation under ORS
468B.217 on the basis of a complaint, the State Department of
Agriculture shall:
(a) { + (A) + } Require the person making the complaint to
specify the complaint in writing; { + or
(B) Make a detailed written record of the complaint; + } and
(b) Determine which provision of ORS chapter 468 or 468B, which
rule adopted under ORS chapter 468 or 468B or which permit issued
under ORS chapter 468 or 468B the operator of the
{ - confined - } animal feeding operation may have violated.
(2) If, upon investigation under ORS 468B.217 on the basis of a
complaint received under subsection (1) of this section, the
State Department of Agriculture determines that { - a
confined - } { + an + } animal feeding operation has not
violated a provision of ORS chapter 468 or 468B, a rule adopted
under ORS chapter 468 or 468B or the conditions of a permit
issued under ORS chapter 468 or 468B, { + and the department has
reason to believe that the complaint was groundless and made for
the purpose of harassing the operator, the department may refuse
to consider future complaints made by the person + } { - the
State Department of Agriculture shall require that any additional
complaint filed by the same person in the same calendar year
shall be accompanied by a security deposit of $100. If, after
investigation, the State Department of Agriculture determines
that a violation has occurred, the security deposit shall be
returned to the person who filed the complaint. If the State
Department of Agriculture determines that a violation has not
occurred, the security deposit shall be forfeited - } .
SECTION 10. ORS 468B.230 is amended to read:
468B.230. (1) In addition to any liability or penalty provided
by law, the State Department of Agriculture may impose a civil
penalty on the owner or operator of a confined animal feeding
operation for failure to comply with a provision of ORS chapter
468 or 468B or any rule adopted under, or a permit issued under
ORS chapter 468 or 468B, relating to the control and prevention
of water pollution from a confined animal feeding operation. For
the purposes of this section, each day a violation continues
after the period of time established for compliance shall be
considered a separate violation unless the State Department of
Agriculture finds that a different period of time is more
appropriate to describe a specific violation event.
(2) { + Except for an animal feeding operation subject to
regulation under 33 U.S.C. 1342, + } the State Department of
Agriculture may not impose a civil penalty under subsection (1)
of this section for a first violation by an owner or operator of
a confined animal feeding operation:
(a) That is more than $2,500; and
(b) Unless the State Department of Agriculture notifies the
violator that the violation must be eliminated no later than 30
business days from the date the violator receives the notice. If
the violation requires more than 30 days to correct, the State
Department of Agriculture may allow such time as is necessary to
correct the violation. In all cases, the legal owner of the
property shall also be notified, prior to the assessment of any
civil penalty.
(3) The State Department of Agriculture may not impose a civil
penalty under subsection (1) of this section that exceeds $10,000
for a subsequent violation.
Enrolled House Bill 2156 (HB 2156-B) Page 4
(4) In imposing a civil penalty under this section, the State
Department of Agriculture may consider:
(a) The past history of the owner or operator in taking all
feasible steps or procedures necessary and appropriate to correct
a violation.
(b) A past violation of a rule or statute relating to a water
quality plan.
(c) The gravity and magnitude of the violation.
(d) Whether the violation was a sole event, repeated or
continuous.
(e) Whether the cause of the violation was as a result of an
unavoidable accident, negligence or an intentional act.
(f) Whether the owner or operator cooperated in an effort to
correct the violation.
(g) The extent to which the violation threatens the public
health and safety.
(5) No notice of violation or period for compliance shall be
required under subsection (2) of this section if:
(a) The violation is intentional; or
(b) The owner or operator has received a previous notice of the
same or similar violation.
(6) A civil penalty collected by the State Department of
Agriculture 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 animal waste management
and to carry out animal waste management demonstration or
research projects.
(7) Any civil penalty imposed under this section shall be
reduced by the amount of any civil penalty imposed by the
Environmental Quality Commission, the Department of Environmental
Quality or the United States Environmental Protection Agency, if
the latter penalties are imposed on the same person and are based
on the same violation.
SECTION 11. ORS 537.141 is amended to read:
537.141. (1) The following water uses do not require an
application under ORS 537.130 or 537.615, a water right permit
under ORS 537.211 or a water right certificate under ORS 537.250:
(a) Emergency fire-fighting uses;
(b) Nonemergency fire-fighting training conducted by public
fire departments and rural fire protection districts, provided:
(A) The source of the water is existing storage and the use
occurs with permission of the owner of the stored water; or
(B) If the source of water is other than existing storage, the
use occurs with the prior written approval of the watermaster in
the district where the training will take place and subject to
any conditions the watermaster determines are necessary to
prevent injury to existing water rights and to protect in-stream
resources;
(c) Water uses that divert water to water tanks or troughs from
a reservoir for a use allowed under an existing water right
permit or certificate for the reservoir;
(d) Fish screens, fishways and fish by-pass structures, as
exempted by rule of the Water Resources Commission;
(e) Land management practices intended to save soil and improve
water quality by temporarily impeding or changing the natural
flow of diffuse surface water across agricultural lands when
storage of public waters is not an intended purpose. Such
practices include but are not limited to:
(A) Terraces;
Enrolled House Bill 2156 (HB 2156-B) Page 5
(B) Dikes;
(C) Retention dams and other temporary impoundments; and
(D) Agronomic practices designed to improve water quality and
control surface runoff to prevent erosion, such as ripping,
pitting, rough tillage and cross slope farming;
(f) Livestock watering operations that comply with the
requirements under subsections (2) and (3) of this section;
(g) Forest management activities that require the use of water
in conjunction with mixing pesticides as defined in ORS 634.006,
or in slash burning;
(h) The collection of precipitation water from an artificial
impervious surface and the use of such water; and
(i) Land application of ground water so long as the ground
water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality { + or the State Department of
Agriculture + } under either ORS 468B.050 to construct and
operate a disposal system or ORS 468B.215 to operate a confined
animal feeding operation.
(2) The use of surface water for livestock watering may be
exempted under subsection (1) of this section if:
(a) The water is diverted from a stream or other surface water
source to a trough or tank through an enclosed water delivery
system;
(b) The delivery system either is equipped with an automatic
shutoff or flow control mechanism or includes a means for
returning water to the surface water source through an enclosed
delivery system; and
(c) The operation is located on land from which the livestock
would otherwise have legal access to both the use and source of
the surface water source.
(3) If the diversion system described in subsection (2) of this
section is located within or above a scenic waterway, the amount
of water that may be used without a water right is limited to
one-tenth of one cubic foot per second per 1,000 head of
livestock. Nothing in this section shall prevent the Water
Resources Commission from approving an application for a water
right permit for a delivery system not qualifying under
subsection (2) of this section.
(4) The Water Resources Department, in conjunction with local
soil and water conservation districts, { + the Oregon State
University Extension Service, + } the State Department of
Agriculture and the State Department of Fish and Wildlife and any
other organization interested in participating, shall develop and
implement a voluntary educational program on livestock management
techniques designed to keep livestock away from streams and
riparian areas.
(5) To qualify for an exempt use under subsection (1)(g) of
this section, the user shall:
(a) Submit notice of the proposed use, including the
identification of the proposed water source, to the Water
Resources Department and to the State Department of Fish and
Enrolled House Bill 2156 (HB 2156-B) Page 6
Wildlife at the time notice is provided to other affected
agencies pursuant to ORS 527.670; and
(b) Comply with any restrictions imposed by the department
pertaining to sources of water that may not be used in
conjunction with the proposed activity.
(6) Except for the use of water under subsection (1)(i) of this
section, the Water Resources Commission by rule may require any
person or public agency diverting water as described in
subsection (1) of this section to furnish information with regard
to such water and the use thereof. For a use of water described
in subsection (1)(i) of this section, the Department of
Environmental Quality { + or the State Department of
Agriculture + } shall provide to the Water Resources Department a
copy of the permit issued under ORS 468B.050 or 468B.215
authorizing the land application of ground water for reuse. The
permit shall provide the information regarding the place of use
of such water and the nature of the beneficial reuse.
SECTION 12. ORS 537.545 is amended to read:
537.545. (1) Except as provided in subsection (4) of this
section, no registration, certificate of registration,
application for a permit, permit, certificate of completion or
ground water right certificate under ORS 537.505 to 537.795 and
537.992 is required for the use of ground water for:
(a) Stockwatering purposes;
(b) Watering any lawn or noncommercial garden not exceeding
one-half acre in area;
(c) Watering the lawns, grounds and fields not exceeding 10
acres in area of schools located within a critical ground water
area established pursuant to ORS 537.730 to 537.740;
(d) Single or group domestic purposes in an amount not
exceeding 15,000 gallons a day;
(e) Down-hole heat exchange purposes;
(f) Any single industrial or commercial purpose in an amount
not exceeding 5,000 gallons a day; or
(g) Land application, so long as the ground water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality { + or the State Department of
Agriculture + } under either ORS 468B.050 to construct and
operate a disposal system or ORS 468B.215 to operate a confined
animal feeding operation.
(2) The use of ground water for a use exempt under subsection
(1) of this section, to the extent that it is beneficial,
constitutes a right to appropriate ground water equal to that
established by a ground water right certificate issued under ORS
537.700. Except for the use of water under subsection (1)(g) of
this section, the Water Resources Commission by rule may require
any person or public agency using ground water for any such
purpose to furnish information with regard to such ground water
and the use thereof. For a use of water described in subsection
(1)(g) of this section, the Department of Environmental
Quality { + or the State Department of Agriculture + } shall
provide to the Water Resources Department a copy of the permit
issued under ORS 468B.050 or 468B.215 authorizing the land
Enrolled House Bill 2156 (HB 2156-B) Page 7
application of ground water for reuse. The permit shall provide
the information regarding the place of use of such water and the
nature of the beneficial reuse.
(3) If it is necessary for the Water Resources Department to
regulate the use or distribution of ground water, including uses
exempt under subsection (1) of this section, the department shall
use as a priority date for the exempt uses the date indicated in
the log for the well filed with the department under ORS 537.765
or other documentation provided by the well owner showing when
water use began.
(4) After declaration of a ground water management area, any
person intending to make a new use of ground water that is exempt
under subsection (1) of this section shall apply for a ground
water permit under ORS 537.505 to 537.795 and 537.992 to use the
water. Any person applying for a permit for an otherwise exempt
use shall not be required to pay a fee for the permit.
SECTION 13. ORS 561.175 is amended to read:
561.175. (1) The State Department of Agriculture by rule shall
establish a schedule of annual fees, not to exceed $25, to be
paid under ORS 468B.215 by any persons operating a confined
animal feeding operation.
(2) As used in this section, 'confined animal feeding
operation' has the meaning given { - in ORS 468B.205 - } { +
that term in rules adopted by the State Department of
Agriculture + }.
SECTION 14. { + ORS 468B.223 and 468B.227 are repealed. + }
SECTION 15. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect
July 1, 2001. + }
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Passed by House April 3, 2001
Repassed by House May 9, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 7, 2001
...........................................................
President of Senate
Enrolled House Bill 2156 (HB 2156-B) Page 8
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2156 (HB 2156-B) Page 9